Willamette Association of Plumbing and Heating Contractors, Inc.

924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and coerced employees in the rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act 7 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act [Recommendations omitted from publication I Willamette Association of Plumbing and Heating Contractors, Inc.; Hoffman Engineering Co.; Buchanan Co. Inc., W. T. Lord and George A. Lord, d/b/a Lord Bros , Contractors, Widmer Plumbing & Heating Co. and Plumbers and Steam- fitters Local Union No. 347, United Association of Journey- men and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO. Case No 36-CA-774 December 18, 1959 DECISION AND ORDER On July 15, 1958, Trial Examiner Maurice M Miller issued his Intermediate Report in the above-entitled proceeding finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto Thereafter, Respondents, Willamette Association of Plumbing and Heating Contractors, Inc, and Hoffman Engineering Co, herein called Association and Hoff- man, respectively, filed exceptions to the Intermediate Report and supporting briefs 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the case., and finds merit in Respondents' exceptions to the Intermediate Report The issue presented here is whether the General Counsel proved by a preponderance of the evidence that the Respondents locked out their employees The facts may be briefly summarized as follows The Respondent Association is comprised of employers engaged in the business of plumbing and heating contracting in and near Salem, Oregon, for which members it engages in collective bargaining I Respondents Buchanan Co, Inc, W. T. Lord and George A Lord, 1 The Employers comprising the Association had formerly been members of another association, Local Joint Industry Board, which had negotiated individual agreements for each employer The current Respondent Association was formed sometime prior to the events herein for the purpose of multiemployer bargaining The individual contracts negotiated by Local Joint Industry Board were due to expire February 28, 1957- 125 NLRB No 94 WILLAMETTE ASbN. OF PLUMBING & HEATING, ETC. 925 d/b/a Lord Bros., Contractors, Widmer Plumbing & Heating Co. are plumbing and heating contractors who, although not members of nor represented by the Association, nevertheless follow the practice of complying with the terms of the contract in effect in the area in which they operate. Here they agreed to follow any agreement made by Respondent Association. Following approximately 2 months of negotiations between Respondent Association and the Union, the Association was notified that, at a union meeting in February 1957, members of the Union had declared their unwillingness to work after March 1, 1957, in the absence of a signed agreement. On February 21, the Respondent Association submitted new pro- posals to the Union, which were rejected on February 22. On Febru- ary 23, the Union sent identical letters to all employers who had signed individual 1956 contracts and to the other Respondents herein. This letter stated, among other things, that the union members would not work after March 1 without an agreement. Copies of this letter were also sent to the entire union membership. On February 26, the Association met to discuss the Union's Febru- ary 23 letter. The 22 members present voted to accept a strike in lieu of meeting the Union's wage demands. On February 27, 1957, the Association's secretary so notified the Union. The letter was received by the Union on February 28. Their decision having been made to accept the strike, the Associa- tion's members and the individual Respondents prepared for the expected strike by "buttoning down" the jobs. The work required to "button down" varied from project to project.z However, in most instances the process was completed on Thursday, February 28; and most of the Employers involved paid off their employees on the evening of that day, apparently unaware of an 11th hour night letter sent to the Association by the Union on the night of Wednesday, February 27. This night letter, addressed to the Association's president, Collins, and its secretary, Arnett, stated that the Union would continue to work and to negotiate after March 1, 1957. The message was received by Collins and Arnett on the morning of February 28. After receiv- ing the Union's message, President Collins called Hansen, president of Atlas Plumbing and Heating, and a member of the Association's 2 "Buttoning down" included the following activities : Water pipes were drained to prevent freezing. Ditches were backfilled to prevent backwash and to conform to public safety regulations. Water taps were put into homes out of scheduled order. Sewer pipe which was either subject to theft or a safety hazard was picked up and put in safekeeping. Fittings and water pipes were picked up and carried into either shacks, into the shop, or into specially rented warehouses. Large tools and machinery were put away ; hand tools were collected. Material orders were canceled, suspended, or rerouted. The State's unemployment compensation commission was notified. Payrolls were made up with a view toward paying off in full Thursday night, February 28. 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiating committee, on the assumption that he had received a similar telegram. Hansen had not received a telegram, but he ques- tioned Collins as to the length of time and upon what conditions the Union would continue working. Collins reported that the telegram was silent with respect to these matters. Collins also called Blair, the Association's labor relations adviser, about the Union's night letter. They agreed that the Union's act was at best only an offer of a temporary resumption of work. Collins spoke to Secretary Arnett as well, and learned that Arnett, too, had received the union telegram. Arnett testified that the Union's notification came too late to change the shutdown plans which were then underway by reason of the Union's earlier strike notice. Despite the Union's expressed intention, as stated in the night letter of February 27, to continue to work,' on the morning of Friday, March 1, union members failed to report for work at the various job- sites of the Respondents except in a few isolated instances." On the next working day, Monday, March 4, the Union dispatched token crews to a few of the closed-down jobs. These crews, however, con- sisted only of job stewards, who were unable to perform the work in the absence of foremen and rank-and-file workers whom the Union neglected to dispatch.5 Moreover, the record fails to establish any further efforts of the Union to cause its members to report for work, except that on March 11 a token crew of stewards reported to one of the jobsites of Respondent Atlas Plumbing; this crew made no offer to work and left the jobsite without answering after being asked under what conditions and for how long they would work. In connection with the foregoing, and, we think significantly, when the Union and the Respondent association resumed contract negotia- tion on Tuesday, March 5, the Union failed to mention the subject of the job shutdowns. The Union, moreover, did not at any bargaining session pursue the subject of putting its members back to work until March 14, when the negotiating committee of the Union sent a letter to the Respondent Association to "confirm our previous notice to you that the members of Local No. 347 are willing to continue working 8 Burroughs , the Union's business agent , testified that he had appointed a committee of five members to telephone the members to continue to work . Burroughs expressed his opinion that a "majority " of the members had been reached , but nothing appears in the record to substantiate this estimate. 4 At Respondent Hoffman's job some of the employees appeared , milled around, took a vote, and refused to work ; but later in the day , after a call to the union hall, most com- menced working ; they did not however, report for work the following Monday , March 4, or thereafter. At Respondent Arnett's job an employee reported , but refused to work on (he said) Instructions from Burroughs. At Respondent Beaver, a serviceman consented to work ; but at Respondent Atlas' office a serviceman refused to work on March 1, but consented on March 4. B Under the expired contract and/or under the working arrangement between the Respondents and the Union , foremen were required to be members in good standing of the Union. WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 927 for members of your Employer's Association and continue negotia- tions in an attempt to arrive at a satisfactory agreement." Like the previous night letter of February 27, this notice did not state for how long or under what conditions the work was to be resumed. On March 15, the Association submitted a written proposal to the Union with respect to certain unsettled contract issues. On March 18, Association President Collins sent a letter to Burroughs of the Union in which he rejected the Union's most recent offer, submitted a counterproposal, and offered to arbitrate the differences. On March 19, Collins sent the Union a letter stating that the members of the Respondent Association would like to have their men back on the following morning, March 20. Beginning on March 20, as jobs were made available, the men returned to work.' On April 14, an agree- ment was reached effective as of its execution date, providing for a wage increase, without retroactivity. The Trial Examiner concluded that the Respondents locked out their employees in order to exert pressure on the Union, and that such lockout violated Section 8(a) (3) and (1) of the Act. We cannot agree with this conclusion. A lockout by definition clearly involves an employer's refusal to allow employees to work when they are ready and willing to do so. In the present case, it appears to us that the critical test should be what the employees did and not what the night letter said they were going to do. The fact remains that no comple- ment of employees complete enough to be capable of performing the work showed up after February 28. These actions were inconsistent with the Union's professed desire to work instead of strike. It is elementary that under these circumstances there could not have been a lockout. It is clear upon the record that a strike was planned, threatened, voted, and prepared for, and that the Respondents were entitled to rely on the strike threat as being effective on March 1. We believe, as the Trial Examiner found, that the Respondents did not attempt, before February 28, to precipitate economic conflict, and that the Respondents' preparations for work stoppage prior to that date were "synchronized with the declared intention of the Union membership to cease work" on March 1. Nor does the record show that the Re- spondents had the opportunity of effecting a coordinated lockout after the Union's last-minute telegram was received. As the Trial Exami- ner recognized, the Union itself appears to have engaged in a. mistake of judgment in not trying to call off the strike sooner. Indeed, the Union's failure to notify each of the associated contractors, separately, of its policy reversal, appears to us to have been equivocal in light of the fact that on all prior occasions the Union had consistently fol- ° However , on or about March 6, 1957 , Respondents Buchanan , Lord, and Widmer re- called their employees to the jobsites and resumed their business operations. 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lowed the practice of sending individual notices of intended union action to each member of the Respondent Association. To recapitu- late, a strike had been called, the preparation for buttoning down the jobs had taken place and the abortive attempt at the last minute to call off the strike was ineffective as no force of employees capable of per- forming work showed up. It is obvious that an employer cannot lock out employees who do not report for work. In view of these circum- stances and others, such as the Union's failure to state in the telegram to Collins and Arnett the duration, and under what conditions the employees would continue to work, we find that the General Counsel failed to prove by a preponderance of the evidence that a lockout occurred. Because the General Counsel has failed to prove by a preponderance of the evidence that the Respondents locked out their employees, we find, contrary to the Trial Examiner, that no violation of the Act occurred and we shall therefore dismiss the complaint in its entirety. [The Board dismissed the complaint.] CHAIRMAN LEEDOM and ME3IBER BEAN took no part in the considera- tion of the above Decision and Order. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge duly filed and served , the General Counsel of the National Labor Relations Board, in the name of the Board, caused the Regional Director for its Nineteenth Region at Seattle , Washington, to issue a complaint on October 3, 1957, under Section 10(b) of the National Labor Relations Act, as amended , 61 Stat. 136. The various Respondents 3 designated therein were charged, specifically , with the commission of certain unfair labor practices under Section 8(a) (1) and (3) of the statute. Copies of the charge, the complaint, and the Regional Director's notice of hearing were duly served upon each Respondent . Various answers , submitted in their behalf, were subsequently received . The Respondents admitted certain jurisdictional allegations of the complaint but denied the commission of the unfair labor practices charged. The General Counsel's complaint alleges, in substance, that : ( 1) The Respondent Association exists, among other things, to negotiate trade agreements, and that its various member firms, to be designated as the Respondent Members in this report, have agreed to be bound jointly by any action of the Respondent Association, and its officers and agents , in pursuit of a collective bargain ; (2) Respondents Hoffman, Buchanan, Lord, and Widmer were, at material times, engaged as plumbing and heat- ing contractors on certain construction projects in and near Salem , Oregon, and were permitted to operate pursuant to the terms of any trade agreement negotiated between the Respondent Association and Plumbers and Steamfitters Local Union No. 347, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, to be designated as the Union herein ; (3) the various member firms of the Respondent Association, on 1 The Respondents designated in the complaint include the Willamette Association of Plumbing and Heating Contractors , Inc., to be designated as Respondent Association in this report ; Hoffman Engineering Co., designated as Respondent Hoffman hereinafter ; Buchanan Co., Inc., to be cited as Respondent Buchanan herein ; W. T. Lord and George A. Lord, d/b/a Lord Bros., Contractors, referred to hereinafter as Respondent Lord specifically ; and Widmer Plumbing & Heating Co., to be designated as Respondent Widmer in this report. WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 929 or about February 28, 1957 , closed their respective shops, plants, and construction jobs except for emergency work, and laid off all of the union members in their employ, during the pendency of a collective-bargaining negotiation between the Respondent Association, acting for its member firms, and the Union designated; (4) Respondents Hoffman, Buchanan, Lord, and Widmer, acting in concert with the Respondent Association and its member firms, similarly suspended work on con- struction jobs in the Union's jurisdictional area, and laid off all of the union members in their employ; ( 5) the employees of Respondents Buchanan , Lord, and Widmer were recalled on or about March 6, 1957, when these Respondents resumed their business operations ; ( 6) Respondent Hoffman and the various member firms of the Respondent Association recalled their employees on or about March 20 , 1957, and resumed business operations ; and (7 ) the action of Respondents Hoffman, Buchanan, Lord, and Widmer, and the action of the Respondent Association in behalf of the Respondent Members previously noted , in suspending business operations and laying off employees during the course of collective-bargaining negotiations with the Union herein, constituted a lockout, by which the Respondents designated discrimi- nated in regard to the employment tenure of their employees to discourage union membership, and interfered with, restrained , and coerced employees in the exercise of rights statutorily guaranteed. Each Respondent in a separate answer, admitted certain jurisdictional allegations of the complaint , as previously noted , and denied the commission of the unfair labor practices charged. Pursuant to notice a hearing was held before the duly designated Trial Examiner; at Salem, Oregon, on November 21, 22, and 25, 1957. The General Counsel, the several Respondents , and the Union were represented by counsel . Each of the parties were afforded a full opportunity to be heard, to examine and cross-examine witnesses , and to introduce evidence pertinent to the issues . Briefs have been sub- mitted in behalf of each participant . Each of them has been duly considered. Upon the entire record in the case, and my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Willamette Association of Plumbing and Heating Contractors, Inc., is a nonprofit association of employers engaged as plumbing and heating contractors in and near Salem, Oregon ; it engages , inter alia, in the process of collective bargaining. Since September 18, 1950 , it has been an Oregon corporation ; its members , from time to time, designate it as their collective-bargaining representative and agree to be bound by the contracts which it negotiates . (The Respondent Association's amended answer denies that its principal office is located in Salem, Oregon , and denies , further, that its member firms have agreed to be bound jointly by its conduct, and that of its officers and agents , in collective bargaining with the Union herein , merely by obtaining Association membership.) During the 1956 calendar year, the Respondent Association and the Respondent Members, in the aggregate , furnished goods and services valued at in excess of $ 183,200 to interstate common carriers and industrial concerns, each of which ships goods to points outside the State of Oregon valued at in excess of $50,000 annually. The answer of the Hoffman Engineering Co., a Portland firm, concedes its engage- ment, at all material times, as a plumbing and heating contractor on certain con- struction projects in and near Salem, Oregon. This Respondent, however, does not concede any agreement, at material times, to be bound by certain collective- bargaining negotiations between the Respondent Association and the Union, nor does it concede its alliance with the Respondent Association and the Respondent Members, evidenced by action in concert with them, specifically , in relation to the situation with which this case is concerned . During the 1956 calendar year, the Respondent Hoffman admittedly performed services valued in excess of $50,000 outside the State of Oregon. Buchanan Co., Inc., also maintains its principal office in Portland , Oregon. It was, I find, engaged as a plumbing and heating contractor on certain construction projects in and near Salem, Oregon, throughout the period material in this case. (Despite the Respondent's formal denial of the General Counsel 's allegation in this respect, the testimony of Ed Donohue, one of its owners , establishes that the firm, during the period from January through March or April of 1957 , had a construction job in Corvallis , Oregon.) During the 1956 calendar year, Respondent Buchanan performed services outside of the State of Oregon valued at $29,000, approximately; 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during the same period it performed work and services valued in excess of $200,000 for interstate common carriers or industrial concerns, each of which ships goods to points outside of the State of Oregon valued in excess of $50,000 annually. W. T. Lord and George A. Lord, d/b/a Lord Bros., Contractors, a partnership with its principal office in Portland, Oregon, was engaged as a plumbing and heating contractor, I find, on a construction project near Salem, Oregon, at all times material in this case. (Despite the Respondent's former denial of this allegation in its answer, the testimony of George A. Lord, a partner in the firm, establishes its participation, during February and March of 1957, in a Corvallis, Oregon, construc- tion project.) During the 1956 calendar year, Respondent Lord admittedly per- formed services valued at in excess of $50,000 outside of the State of Oregon. Widmer Plumbing & Heating Co. also maintains its principal office in Portland, Oregon. It was engaged, I find, as a plumbing and heating contractor on certain construction projects near Salem , Oregon, throughout the period with which this case is concerned . (Despite the Respondent's former denial of the General Counsel's allegation in this respect, the testimony of Walter J. Widmer, its president, establishes its participation, throughout February and March 1957, in construction jobs at Albany and Corvallis, Oregon.) During the 1956 calendar year, Respondent Widmer performed services valued at in excess of $100,000 for industrial concerns each of which ships goods to points outside the State of Oregon valued at in excess of $50,000 annually. Each of the last three individual Respondents discussed, like Respondent Hoff- man herein, has denied its involvement in any agreement to be bound by the results of a collective-bargaining negotiation between the Respondent Association and the Union. And each of them, also, has denied the existence of any alliance on their part with the Respondent Association and the Respondent Members, evidenced by action in concert with the latter, or in sympathy with them, during the period with which this case is concerned.2 The Respondent Association, its employer members, and the several Respondents designated as such specifically herein, concede their status as employers within the meaning of Section 2(2) of the Act, as amended, and their involvement in interstate commerce within the meaning of Section 2(6) and (7) of the statute. In the light of these separate concessions, and in the light of this Agency's established jurisdic- tional policy-see Jonesboro Grain Drying Cooperative, 110 NLRB 481, and re- lated cases-I find that the assertion of the Board's jurisdiction in this case is war- ranted and necessary to effectuate the statutory objectives. It. THE LABOR ORGANIZATION INVOLVED Plumbers and Steamfitters Local Union No. 347, United Association of Journey- men and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act, as amended, which admits to membership employees of the various Respondents and functions as their collective-bargaining representative. III. THE UNFAIR LABOR PRACTICES A. The general course of events 1. Background a. The Union Plumbers and Steamfitters Local Union No. 347, United Association of Journey- men and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, the labor organization involved in this case, maintains its principal office in Salem, Oregon. Its territorial jurisdiction , generally, covers the Willamette Valley, in the western part of the State ; it extends, also, to the western slope of the Cascade Range on the east, and the Pacific Coast on the west. The Portland metropolitan area, however, is not included . (There is an intimation in the record, which is not disputed , that the Union's territorial jurisdiction covers 7,000 square miles. I so find. ) The Union's membership apparently fluctuates between 100 and 185 men, of this number approximately one-half reside in the Salem vicinity, and the rest are scattered throughout 5 counties. 2 The issues posed, in this connection-insofar as they may affect the liability of these Respondents under the statute-will be analyzed elsewhere in this report. WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 931 b. Prior contracts During the 1950-53 period the Union was privy to individual trade agreements negotiated on a statewide basis with a group representing various plumbing and heating contractors and separately executed by the contractors . A State Joint In- dustry Board, made up of a representative from each local union of the United Association within the State and a management representative from each local's trade area, negotiated the standard agreement form. After the negotiations , the form of agreement reached was initialed by the negotiators ; each local union then proffered the form of agreement for execution , individually, to the local contractors in its area. Since January 1, 1954, however , the Union has negotiated agreements with a Local Joint Industry Board; the employer representatives on this body have been elected annually by the plumbing and heating contractors privy to trade agreements currently effective within the Union's territory. The agreements negotiated have been initialed by the labor and management negotiators ; thereafter they have been proffered to the individual contractors for execution . Such a group of standard agreements was executed , within the Union's territory, for the 12-month period which ended on March 1, 1957. 2. The inception of negotiations Customarily, the Union has sent annual letters to each of the contractors privy to its form of agreement, announcing its desire to open the agreements for modifica- tion and renegotiation. With respect to the 1956-57 agreement, however, notices of termination were initially dispatched to the organization, apparently, by several plumbing and heating contractors . The Union received the first of these on December 10, 1956; there- after, additional letters were received on the 12th , 13th, 14th , 15th , 18th, and 20th of the month . Each of the employers who wrote notified the Union , officially, of its desire to "terminate" the 1956-57 agreement ; notice was given by each employer "individually" as a contract signatory , and "collectively" as a business entity repre- sented by the Joint Industry Board of Negotiators , previously cited. The Union was also advised that: Since the Willamette Association of Plumbing Contractors Inc. of Salem, Oregon, has been given authority to negotiate and sign agreements on our be- half under their name we should like to suggest that you communicate with the Secretary of that Association in all matters regarding negotiations and sign- ing of any and all agreements with Local Union #347. It is our intention that by this action we are indicating to Local #347 that we are a part of the bargaining unit of the Willamette Association of Plumbing Contractors Inc., until further notice, and shall be bound by their actions in our behalf. [ Emphasis supplied.] On December 16, 1956, after its receipt of most of the notices cited, the Union dispatched a letter, over the signature of D. W. Burroughs, its business manager and secretary-treasurer, to all contractors privy to its form of agreement , to give a 60- day notice of the agreement's termination . The contractors were advised of the Union's desire to initiate negotiations through the Local Joint Industry Board for contract modifications, and the Union 's business manager observed that agreement thereon "should be reached" prior to the March 1, 1957, expiration date of the agreement being terminated. On December 19, 1956, Burroughs also sent a copy of the Union's letter to Harold Arnett, the secretary of the Respondent Association, signifying the Union's desire to reopen the agreement for negotiation. Arnett was advised, among other things, that: To-date I have received notices from twenty-three members of your Associa- tion notifying us of their intentions to negotiate through your organization. I will check with you when this list seems to be complete. The suggestion was also made that the regular monthly meeting of the Joint Industry Board scheduled for Christmas Eve be postponed to an early January date; Arnett was requested to advise the Union with respect to a date which the Respondent As- sociation would find convenient. Thereafter, I find, a number of conferences were held. At the first of these, how- ever, early in January , the employer representatives appear to have been present in a dual capacity . Since the conference was apparently convened , officially, as the postponed December meeting of the Local Joint Industry Board, the employer 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representatives were, presumably, prepared to function as Local Joint Industry Board members, and to consider the matters customarily brought before them for disposi- tion. At the same time, I find, they were prepared to initiate discussions with re- spect to the negotiation of a new agreement-and, while thus engaged, apparently, they wished to be treated as the Respondent Association's negotiating committee. Alfred "Pat" Blair, subsequently retained by the Association as its executive secre- tary, was present at the first conference as a labor relations adviser and management committeeman. A question seems to have arisen, however, as to whether the employers present, as the Respondent Association's committeemen did, in fact, represent all of the firms in the area privy to 1956-57 standard agreements which were about to expire. The union negotiators appear to have sought a settlement of the question by re- questing a list of the Association's members; the contractors refused to supply such information, however, on the ground that a list of the firms represented by the As- sociation was all the Union could properly request. Because of these different view- points, I find, little progress with respect to the negotiation of a new agreement was made at the first conference. As a witness, the Union's business manager now concedes that the Association spokesmen did claim to represent a number of business enterprises in the negotiation of a new agreement. His testimony even suggests present willingness to admit that "most" of the contractors privy to the 1956-57 agreements had, in fact, authorized the Association to bargain in their behalf. The record establishes, however, that the union spokesmen at the first negotiating conference, despite their apparent knowledge with respect to the soundness of the Association's claim-specifically their presumptive awareness, on the basis of the contract termination letters which the Union had received, that at least 23 contractors had designated the organiza- tion as their representative-did press a request, as noted, for the Association's membership list. And the contractors, I find, did insist that the Union could not rightfully call for the production of such a list, and that it could only claim a right to information with respect to the firms the Association represented. With nego- tiations in this posture, I find, the first conference ended. There is nevertheless, a suggestion by counsel in the record-buttressed by the testimony of the Respondent Association's president-that the union representatives at the first conference may have refused, altogether, to recognize the Respondent Association as an authorized employer spokesman, even for its employer members. Upon the entire record, I am satisfied that there was no such refusal, and that the union representatives merely expressed the opinion that there might be some contractors, privy to 1956-57 standard agreements, who had not yet authorized the Respondent Association to negotiate a new agreement in their behalf, despite their possible Association membership; the union representatives seem to have anticipated that, if this were in fact the case, a form of agreement would have to be negotiated with the employers present, in their capacity as Local Joint Industry Board members, for subsequent submission to the particular employers, not bound through the Association, individually. When questioned in cross-examination with reference to this situation, for example, Business Manager Burroughs of the Union described the exchange which occurred in the following terms: At the first meeting there was a question . . . as to well . here is our Joint Industry Board, and they are the same men, but now it is the Association. [Just] who are you representing? [Do] you represent all of the people? [Who] are members of your Association? [And] . one time Pat Blair said, "It is none of your business," in one of the meetings, but we brought out the point that Decatur and Mertz were a member of their Association, and Judson was a member of their association and there was a question of a number of contractors at the time that we hadn't received letters from. [And] just actually who did they represent. . . . This question does not appear to have been resolved to everyone's satisfaction, however, until the end of March, at least. Blair, I find, then presented Burroughs with a definitive typewritten list of the plumbing and heating contractors who had given the Respondent Association authority to negotiate and sign agreements in their behalf. Twenty-eight firms were listed; seven of these were not Association members, but the Union was advised that it represented all of them in the negotiations. The testimony of the union business manager does indicate that, some time after the initial conference noted, a question was, in fact, raised by the union negotiators as to the nature and extent of the negotiating authority conferred upon the Re- spondent Association by its member firms and others. Burroughs, I find, also conceded that the union representatives, at one time, raised a question as to why WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 933 the Association did not have the authority to negotiate and execute an agreement for all of its employer members. He did not, however, concede a refusal on the Union's part at any time, to recognize the Respondent Association as the repre- sentative of certain employers in the absence of proof that it represented all of the contractors privy to the 1956-57 standard agreements. Upon the entire record and my observation of the witnesses, I credit the business manager's testimony with respect to the Union's position. His statements in this connection, establish, in the absence of contradiction, that "Pat" Blair referred, at one time, to the absence of obligation on the part of the contractors with Association membership to give the Respondent Association bargaining rights, and his testimony also establishes, con- trary to the contentions of the Association's counsel, that the Union, nevertheless, continued to negotiate with the Respondent Association's representatives, despite its awareness of the fact that any agreement reached would not, necessarily, bind all of the organization's members. At a negotiating conference early in February, the union representatives were asked to poll the organization's membership to determine their willingness to accept cash compensation instead of a provision for vacations with pay and a health and welfare program. And shortly thereafter, I find, the members present at a union meeting in Salem were, in fact, polled on these questions, by written ballot. They were also asked to declare their willingness or unwillingness to work after March 1, in the absence of a signed agreement. With respect to the last question, a majority of the members polled indicated an unwillingness to work after March 1 in the absence of an executed agreement. And the Respondent Association's committee was, thereafter, so advised. There is testimony, proffered in the Respondent Association's behalf, that Business Manager Burroughs had already made some reference, previously, to the speculative possibility that the Union's membership would be unwilling to work after March 1, 1957, without a contract. I credit this testimony. After the membership poll to which reference has been made, however, Burroughs appears to have bottomed his prediction with respect to the possibility of a work stoppage, in the absence of an agreement, expressly upon the poll results. I so find. 3. The prospect of a work stoppage At a conference held on February 21, 1957, the Respondent Association presented a comprehensive proposal with respect to a new agreement. And Burroughs was requested to put the entire proposal before the union membership for acceptance or rejection by secret ballot. He was also advised that: This is to be considered a package deal in that it must be accepted in total or the whole offer is immediately withdrawn. It may be noted that the Association's letter-which included a proposal that the agreement be rewritten to incorporate all matters previously agreed upon-did not include a suggestion with respect to any commitment by the Union to recognize the Respondent Association as the representative of the employers involved. On the 22nd, at-a regular union meeting, the proposal was rejected. And on February 23, 1957, each of the individual contractors privy to a 1956-57 agreement was so notified by letter, individually. Specifically each contractor was advised that: It has been the position of Local No. 347 that we were willing to negotiate in good faith with those members elected by the signors of our Agreement as we. have done in past years. Thursday evening as some of you are no doubt aware the Management Committee presented us with a TAKE IT ALL OR NONE ULTIMATUM. OUR MEMBERSHIP TURNED IT DOWN. At no, time during our Negotiation has Labor ever said HERE IS OUR PACKAGE TAKE IT ALL OR WE WILL STRIKE . . . .. . Local No. 347 wishes a statement from you regarding your position as. our membership stated some weeks ago that they did not wish to continue working after March 1st without an Agreement. However it is the position of Local No. 347 that we want to make every effort possible to reach an Honest, Just, and Fair settlement in our current negotiations. We are willing to cooperate with Management in seeing that for both Managements sake and our own that the best interest of the Public is kept in mind and that plans be made providing Management is willing to work out a program where emergency work involving the Public Health and Welfare will be taken care of in case no agreement can be reached. However, we want you to know that Labor will not go along with the program that has been outlined by the Negotiating Committee of the 535828-60-vol. 125-60 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Willamette Valley Plumbing and Heating Contractors, Inc., whereby the prin- ciples and security of the contract under which we have operated for many years without trouble and a contract that was arrived at through Honest Collective Bargaining throughout the years would be wiped out. The letter was signed by Business Manager Burroughs. As previously noted, copies were sent to the contractors privy to the 1956-57 standard agreements; they were also sent to the "outside" contractors then at work on construction projects within the Union's territory-specifically, among others, Respondents Hoffman, Buchanan, Lord, and Widmer herein. They appear to have been received, in every case, on the 25th of the month. (The record establishes that Hoffman, Buchanan, Lord, and Widmer did not maintain Association membership, and that they were not, officially, represented in the contract negotiations between the Union and that organization . Hoffman, however, was privy to a separate union contract, and he was apparently kept informed with respect to the progress of the negotiations.) Copies of the letter were also dispatched, I find, to the entire union membership, which was advised by letter, among other things, that the "all or none" proposal of the employers included an "inference" that they would not continue to negotiate but would lock out their employees. Sometime previously-early in February, actually-at the Respondent Associa- tion's invitation, Conciliation Commissioner Clyde Deal of the Federal Mediation and Conciliation Service had been assigned to assist the negotiators. He had, I find, set up several of the negotiating sessions prior to the February 21 conference. After the dispatch of the Union's letter on February 23, 1957, Burroughs telephoned Deal to advise him of the Union's willingness to continue negotiations, and to inquire if another meeting of management representatives had been scheduled. Deal was advised, specifically, that the Union's negotiating committee planned to meet on February 27, and that, if the management representatives did get in touch with him and expressed a willingness to meet that night, the union representatives would be available. On February 26, 1957, the contractors represented by the Respondent Association met in Corvallis, Oregon, to consider the state of the negotiations and the Union's response to management's package proposal. About 22 contractors were represented. As an adverse witness summoned by the General Counsel, Vern Collins, the Re- spondent Association's 1956-57 president, initially summarized the meeting as follows: The letter of the 23rd was the main issue being discussed and the purpose of the meeting being called. And in particular paragraph 3, the issue being kicked around, put before the members, did we want to accept a strike or did we want to meet the wage demands which, if I recall, were at that time approximately around sixty cents an hour, total wage and fringe benefits and so on. . The issue was discussed, different ones gave their view on it, several remarks were made, well, some of the members didn't feel like that they wanted to meet those demands in order to ward off a strike and the final vote was taken, one hundred percent voted to accept the strike in lieu of meeting the demands. . It was our understanding that this third paragraph whereby they did not wish to con- tinue working without an agreement was in a sense a threat of a strike. . We voted on the issue, shall we take the strike or shall we meet the demands. [Emphasis supplied.] Several contractors, I find, expressed an opinion that the group could not afford to meet the Union's demands, costly though it might be to shut down. A committee was therefore appointed to draft a response to the Union's letter of February 23; the letter was drafted and dispatched, over the signature of Secretary Arnett for the Respondent Association, on the 27th of the month. In it, Business Manager Burroughs was advised that: In answer to your letter of February 23, 1957 we of the Willamette Associa- tion of Plumbing and Heating Contractors, have agreed this date, that because of the failure to arrive at satisfactory negotiation of a working agreement to accept the instructions as set forth in the 3rd paragraph of said letter. Specifically, we refer to your statement that if there is no agreement after March 1st then your men do not wish to continue working. At this time we wish to advise that our negotiating committee is ready at any time to continue to solve this problem intelligently. The letter went on to suggest that some solution should, of course, be arranged with respect to emergency work. It was received by Burroughs on February 28, 1957, in the morning mail. WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 935 4. The Union's telegram In the meantime, however, on the evening of February 27, 1957, the negotiating committee of the Union had dispatched two identical Western Union night letters, addressed to President Collins and Secretary Arnett of the Respondent Association, advising them, in substance , that "in order to prevent any work stoppage , and in the interest of the public health and welfare " the membership of the Union would continue to work, after the March 1 expiration date of the terminated 1956-57 agreement, and continue to negotiate for a new agreement . The Association officers were also advised that the Federal Mediation and Conciliation Service had been so notified. Immediately after the dispatch of these telegrams , a group of five union members was designated to notify the rest of the membership by telephone. The record does not reveal the number of local calls made in the Salem area, but it shows approxi- mately 10 long-distance calls to points within the territorial jurisdiction of the organization . As a witness, Burroughs conceded that no effort was made to reach every union member outside the Salem area ; his testimony does establish , however, that men were called in every community where the Union had several members, and that the men reached were asked to pass on the news that the Union 's nego- tiating committee had pledged a continuation of work after the expiration of the current agreements . The Union's business manager expressed the opinion that a "majority" of the organization 's members were reached, directly or indirectly; I find nothing in the record to suggest that his opinion may be questionable. In the course of argument in this case, the Respondent Association's counsel raised a question as to the authority of the Union 's negotiating committee thus to commit the membership of the organization to a continuation of work . The testi- mony of Business Manager Burroughs in this connection however, which has not been challenged , does establish that the union members had given the "power to act" to the negotiating committee of the organization . As a witness, Burroughs also testified , without dispute, that the men had worked in the past without a contract; he went on to say that the negotiating committee therefore felt it had the power to "go ahead and continue working" while engaged in the negotiation of an agreement, as in the past. When considered in its immediate context, this testimony does not appear to have been offered, deliberately to forestall or overcome the Respondent Association's contention, previously noted, that the negotiating committee of the Union lacked the authority to commit the organization's membership to any modifi- cation or abandonment of the "no contract-no work" policy it had previously approved ; the testimony in question was proffered almost at the outset of the case, before the Respondent Association's contention was articulated . I find it credible. A grant of plenary authority to contract negotiators , with respect to the actual initiation or postponement of an authorized or anticipated work stoppage, is not uncommon in the labor relations field. The telegrams sent by the union negotiating committee were "delivered" by tele- phone on the morning of February 28, 1957. There is some dispute, in the record, as to the precise time of their delivery; on the basis of the regular confirmation which Western Union provided, however, at the Union 's request, I am satisfied that Arnett's firm received word of the Union's revised position at 8:37 a.m ., and that President Collins of the Respondent Association received the same message by 8:50 a.m., on the indicated date. As of February 27, 1957, however, Business Manager Burroughs had also dis- patched a letter-noted in the Union's telegram to the Association's officers-to Conciliation Commissioner Deal at his Portland Office. Deal was reminded of the Union's earlier refusal to accept the Respondent Association 's "take it or leave it" package proposal . And the letter continued as follows: However I wish to state that Labor is willing to make every effort to prevent a work stoppage March 1st and continue in negotiations for a new agreement, for I feel there are many fields in our negotiations that were scarcely dis- cussed. . I have also heard that Management is planning to lock us out March 1st. If this materializes I am sure you will realize that we were willing to continue negotiations for a fair and honest settlement. On the morning of the 28th , after his receipt of Secretary Arnett's crossing letter, previously noted, Burroughs went to Portland to confer with Deal and various Portland plumbing and heating contractors-specifically, 'I find, Respondents Hoff- man, Buchanan , Lord, and Widmer herein. Each of these contractors , as previously noted, was then involved in construction work within the Union 's territorial juris- 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD diction. And two of them, at least, had executed, sometime previously, formal agreements or "letters of understanding" addressed to the Union, declarative of their willingness to maintain the wage schedules, hours, and working conditions uniformly established by the various agreements currently effective within the Union's terri- tory, while doing work therein. The business manager's testimony, which I credit in this connection, establishes that he attempted to reach Respondents Buchanan, Lord, and Widmer by telephone; he was able to reach George A. Lord, only. When he called Buchanan and Widmer, respectively, he was only able to speak to "some- one" in Buchanan's office and Widmer's shop. In each case, I find, he left word that the Union was willing to continue work while negotiations were in progress. (The record establishes that he was able to reach Ed Donohue, one of Respondent Buchanan's owners, some time later, and that he gave Donohue the same information directly; Donohue was unable to say whether Burrough's call was received on the 28th or thereafter. Walter Widmer, the Respondent Widmer's president, acknowledged the possibility that something might have been said to his office girl by the Union's business manager, and that she might have mentioned it to him in an "offhand" way.) Burroughs also spoke to Respondent Hoffman's piping manager on the tele- phone, I find, and advised him of the Union's willingness to supply the firm with plumbers and pipefitters. He then proceeded to Respondent Hoff man's office, and visited President Walter Burns Hoffman, shortly after noon. Specifically, I find, he told President Hoffman about the Union's telegram; this information was coupled, I find, with an affirmative indication that Respondent Hoffman could continue work. 5. The work stoppage a. The Respondent Members Most of the employers the Respondent Association represented, in the meantime, had already undertaken to prepare for a work stoppage. At some projects, I find, the anticipatory work required had in fact been initiated early in the week by the union employees, with their employer's approval; at the others, the activity incidental to the expected shutdown had begun on the morning of February 27, 1957, sub- sequent to the Respondent Association's decision at Corvallis, the previous night, to "accept" the anticipated work stoppage. The work required, in this connection, varied from project to project. Its various aspects have been well summarized in the Respondent Association's brief: Water pipes were drained to prevent freezing. Ditches were back filled to pre- vent back wash and to conform to public safety regulations. Water taps were put into homes out of scheduled order. Sewer pipe which was either subject to theft or a safety hazard was picked up and put in safekeeping . Fittings and water pipes-in some cases miles of it-were picked up and brought into shacks or into the shop or into specially-rented warehouses. Large tools and machinery were put away in advance, some in specially built enclosures. Hand tools were collected. The general contractor and other subcontractors were advised of the strike so their schedules could be adjusted. The few days remaining of plumbing work was spent concentrating effort on jobs which would be most helpful in view of the strike-getting out of the lathers' way, getting pipes ready for covering, etc. Material orders were canceled, suspended or rerouted. The State's Unemployment Compensation Commission was notified. Payrolls were made up with a view toward paying off in full Thursday night. [Some] employees requested such final pay. These preparations, of course, were only undertaken if required by specific projects; the record does not reveal the amount of preparation required, if any, at the "job shops" or "service shops" operated by many contractors. To whatever extent prep- arations may have been necessary, on particular projects, they appear to have been underway when the union telegrams, previously noted, were received by the Respond- ent Association's president and secretary. The first reaction of President Collins, apparently, was one of surprise. The first thing he did, I find, was to call President Robert Hensen of the Atlas Plumbing & Heating Company, a member of the Association's negotiating committee-on the basis of an assumption that all of the firms represented by the Association would have received similar communications. He learned, however, that Hansen had re- ceived no telegram, and expressed the opinion that Atlas probably would get one. Hansen's testimony, which I credit in this connection, indicates that he questioned Collins as to whether the Union had said anything as to the length of time for which the men would continue to work or the conditions under which they would continue. WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 937 Collins reported that the telegram was silent with respect to these matters. His own testimony with respect to his further comment establishes that: And I told him actually I didn't know of anything that could be done about it, it came late, no conditions were set and I says, as far as I am concerned I don't want to get into another retroactive pay deal. . . . Collins also put through a long-distance call to "Pat" Blair, who was then in Port- land. He reported the receipt of the Union's telegram-after reaching the labor rela- tions adviser of the Association late that morning-and solicited Blair's opinion with respect to the situation. The composite testimony of the latter with respect to his comments, which I credit, reads as follows: After we had discussed it I suggested to him that in the first place, if we were going to do anything about negotiations it would have to be handled through Earl Forsyth, who was then chairman of the negotiating committee and that if the association was going to take any action of any kind, it would have to come from an association meeting. So that I indicated to him as I could see it, nothing could be done by the association in regard to this wire unless an association meeting was called. . I suggested to him in our conversations that it appeared to me if the union was interested at all in negotiating this contract and stopping anything that was going to occur or that had been pre- arranged that they could have called Clyde Deal, that he could have gotten a meeting quicker than he could have called a meeting with the association.. . . And as we discussed the contents of the telegram we could see nothing in there that gave any promise to the fact that they would be working tomorrow, the next day, the next week or the next month. It is just a question that they would resume work for a moment. No effort was made to call an Association meeting. Collins spoke to Secretary Arnett of the organization, however, sometime in the afternoon. He learned that Arnett's office had also "received" the union telegram in a telephone call, but the conversation appears to have been otherwise inconclusive. (Collins also had tele- phone conversations, I find, with Forsyth and Francis Blecha, another contractor. The Union's night letter was read. These conversations, however, did not stimulate any action. Collins did not advise Forsyth that the Union' s message had any appli- cation to him.) Collins had already directed his bookkeeper to make out the pay- checks for the men . That afternoon he visited his job, and determined that the men had completed the work required to prepare for a shutdown. The paychecks were issued, and each employee received a copy of Secretary Arnett's February 27 letter to Business Manager Burroughs, previously noted. Collins, I find, told the men that he had "heard" that they would not be on the job the next day and wanted their checks at once. The employees were also notified, by a note attached to Arnett's letter, that the negotiating committee of the Respondent Association desired to hold future conferences with respect to a new contract in quarters sufficiently large to accom- modate the entire union membership and all of the Association members as spectators. Each of the Respondent Members and the other firms represented by the Re- spondent Association, I find, paid off its employees on Thursday evening, February 28, 1957.3 For most of the employers involved, this does not appear to have been a regular payday. In almost every instance, however, the employees were paid in full for their work, through the 28th of the month, on the indicated date. One small firm, Beaver Plumbing and Heating, paid its employees on their regular Monday payday; another, Atlas Plumbing & Heating, had a regular Thursday payday and its employees received the regular pay which they were due to receive on that date. The Atlas employees were paid, specifically, for work done through Wednesday. Eight of them, later in the afternoon, requested payment in full, and the firm, I find, ultimately issued checks to all of its employees, for their earnings after the regular pay period. On the following day, the Union instructed its job stewards at certain "shops" to report for work in order to test the willingness of the contractors to continue operations. None of those who reported were offered work assignments. In the absence of dispute, the available evidence establishes that several con- tractors privy to 1956-57 agreements with the Union did not suspend operations after February, but continued to provide work for the union members in their 3 There may have been one exception ; the testimony of Burroughs suggests that one contractor, Den Herder, kept his new construction project at the Lebanon, Oregon, hospital active and provided work for two union members, who reported for employment as usual after February 28. 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employ. Among those cited, Industrial Plumbing and Heating and Albany Plumbing and Heating may be noted; these firms do not appear to have been Association members, and there is no evidence that they had designated it to negotiate a new agreement in their behalf. The A. G. Rushlight Company, a Portland contractor with a job in the Union's territory, also appears to have continued work without in- terruption. I so find. In each case, the employees involved remained at work under the terms of their old agreements. b. Buchanan, Lord, and Widmer Elsewhere in this report , it has been noted that copies of the February 23 letter of the Union were dispatched to Respondents Buchanan , Lord , and Widmer, among others. The immediate reactions of each Respondent to the letter , however, have not been detailed for the record . Certainly, nothing in the transcript suggests that these Respondents required extensive preparatory work to minimize the impact of a stoppage by their employees. When, therefore , they received information , on the 28th of the month, with respect to the change in the Union's position relative to a work stoppage , no imme- diate need for them to consider an alteration in some course of action, newly initiated , appears to have arisen . I so find. No representative of these Respondents even appears to have pressed an inquiry with respect to the current status of the contract negotiations between the Union and the Respondent Association, then under way. And no questions appear to have been raised by the Respondent Members with respect to the terms and conditions under which the union member- ship would continue to work , or the length of time for which work would be continued. Shortly after their receipt of the Union 's message, however, each of these Re- spondents was notified by Roscoe Watts , their Portland counsel , that a work stop- page was expected to eventuate in the Union 's territory ; each of the firms was told, I find, that it would be well advised to lay off the plumbers and pipefitters in its employ on Friday, March 1, at the close of business , until the difficulty was "straightened out" thereafter . (Upon the entire record, no definitive conclusion can be reached as to when Buchanan , Lord, and Widmer actually received this advice. Some of the testimony in the case-that of Lord , for example-will sup- port an inference that Watts advised each of these employers to lay off the union men in their employ on Thursday, February 28; there is other evidence however-in Donohue's testimony-which would warrant a conclusion that Watts proffered this advice on the following day. For present purposes, however, a determination with respect to this aspect of the situation would seem to be unnecessary .) On March 1, 1957, the union members in the employ of Buchanan and Lord were all paid in full for services rendered , and they were instructed , I find , not to report for work on Monday of the following week. (In Buchanan's case, I find, the firm's regular payday was Tuesday, for a week ending on Friday but full pay was issued at once.) The Respondent Widmer at the time, had only one plumber or pipefitter in its employ. On the evening of February 28 1957, Walter Widmer dispatched a letter to this employee, which he expected the employee to receive on the following day, advising him to "stop work" temporarily and await developments. The available evidence with respect to the motivation of these individual Re- spondents will support an inference, in my opinion , that they suspended operations primarily as a demonstration of their desire to cooperate with the Respondent Association, and in order not to "embarrass" the employer's group. As a witness in the Respondent Buchanan 's behalf, for example, Ed Donohue testified that his superintendent was told not to report on Monday , March 4, 1957, because of the "strike" then effective in Salem; he was also told the firm would do whatever "they" wanted . Donohue also conceded an earlier acknowledgement, given to Secretary Arnett of the Respondent Association, that the firm would have to "fall in line" and observe the terms of any agreement negotiated for general adoption throughout the territory of the Union herein. George A. Lord, also, acknowledged his responsibility for a statement to Business Manager Burroughs that he would "go along" with the other employers involved in the contract negotiations ; Lord also acknowledged the receipt of an inquiry from Robert Hansen , on the 28th, as to whether his firm was "going out" and conceded a statement to Burroughs , in sub- stance, that as long as the rest of the employers were "going out" he would go with them. His men were told that they were being laid off until the firm was sure that it "had" an agreement. And Walter Widmer, as a witness , acknowledged his antecedent desire to pursue a course of action, in the face of the anticipated work stoppage, which would not "embarrass" any employer group of "aggravate" a labor organization. WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 939 Each of the employers now under consideration had already conceded its obliga- tion to comply with any local contractual provisions of general application-with respect to wages, hours, and terms and conditions of employment-while active on projects within the Union's territorial jurisdiction ; and the record establishes their awareness of this obligation , specifically , as a factor in the decision of each to lay off the plumbers and pipefitters in their employ. c. The Respondent Hoffman In February 1957, Respondent Hoffman was engaged in a construction project which involved the expansion of the Western Kraft Corporation 's Albany, Oregon, paper mill ; the firm's principal task, I find, involved the enlargement of the mill's paper machine, to permit the production of additional paper tonnage. On February 28, 1957, there were 80 men in the Respondent 's employ at the project . The group included 9 carpenters , I cement finisher, 8 structural steelworkers , 7 boilermakers, 2 equipment operators and oilers , 13 millwrights, 7 laborers , and 31 plumbers and pipefitters , in -addition to a superintendent and office worker. The plumbers and pipefitters, I find, were employed under a contract with the Union , and all of them were members of the organization. Western Kraft's paper mill was in regular operation despite the presence of the Respondent's construction crew. It had previously been obliged to shut down, I find, for a 2-day period to permit the completion of some preliminary work on the basic mill machinery. At all material times, however, it appears to have been understood that completion of the project would ultimately require a "major shutdown" of the mill to permit the installation and connection of the prefabricated machine parts essential to its expansion . Respondent Hoffman and its client , I find, had already agreed that the plant would have to cease operations for a period of 2 weeks, approximately, for this purpose. And by the end of February the mill management had been notified of Respondent Hoffman 's intent to request 'a cessation of plant operations on March 11, for the reason indicated. The date selected fell on a Monday, at the outset of the second workweek commencing after Friday, March 1, 1957; it thus fell 5 working days after the first of the month . The testimony of the Respondent Hoffman's president establishes the firm's previously formulated inten- tion to hire extra construction workers during the anticipated mill shutdown, and to institute "shift" work as required , to minimize the shutdown period. As a witness President Hoffman estimated , credibly, that Western Kraft produced an average of $20,000 worth of paper products daily; in the light of the gross income loss which the paper mill might reasonably be expected to suffer during the shutdown , therefore, Western Kraft and the Respondent Hoffman appear to have been equally anxious to cut the period within which operations would necessarily be suspended to the shortest possible time. I so find. (1) The visit of the Union's business manager Shortly after noon on February 28, as previously noted, Business Manager Burroughs called upon Respondent Hoffman 's president. He referred , I find, to the telegram which had been dispatched to the official representatives of the Respondent Association, exhibited a copy of it, and went on to say that the Respondent Hoffman could continue to work. The testimony of President Hoffman reveals his agreement with a suggestion by counsel that the statements of Burroughs included an "implica- tion" that the Respondent Hoffman would be able to continue work even though other employers might not be able to do so. Since Hoffman's indicated response followed a leading question , however, I have attributed no significance to this aspect of his "impressions " with respect to the conversation now under consideration. President Hoffman's testimony establishes , in the absence of contradiction, that Burroughs made no attempt, voluntarily, to state the conditions under which work would continue, or to guarantee that the firm would be able to continue work for any given period of time; no such commitments or guarantees , however, appear to have been sought. As a witness, Hoffman conceded that he had made no attempt to raise a question as to the possibility of an interim agreement, pursuant to which existing conditions on the job would be continued pending the execution of a new contract. In response to a question about his reaction to the information which the Union's business manager provided, Hoffman testified that: It was merely that, certainly by my working , I would weaken the other em- ployers, because it is only natural that employers should properly stand together in the face of a strike and so one of my first reactions was that of giving proper consideration to the support of the other employers . And my second reaction 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was one in which we have testified on here before , that in view of the uncer- tainties involved here , I had been apprised of the letter of February 23rd, I had a copy. It was sent to me, which, to my way of thinking, was a threatened strike, then this changed position which Mr. Burroughs was mentioning to me on the 28th created an unsettled condition which I pointed out before , we could not operate with what we had in mind, and by that I am referring to this shut- down that was contemplated, roughtly, a week later . . . advance notice had been given to Western Kraft Corporation. When questioned with respect to his impression of the Union 's purported willing- ness to "call off" any work stoppage , Hoffman did concede that the Union 's telegram, reported for his information, reflected a change in its position with respect to the possibility of a stoppage; he professed an inability, however, to "interpret" the telegram's significance. (2) The work stoppage On the morning of March 1 , 1957 , Respondent Hoffman's plumbers and pipefitters did not begin work at 8 o'clock , as scheduled . Eight or ten of the men, I find, as- serted that work ought not to begin in the absence of an agreement, and attempted to poll the plumbers and pipefitters at the project with respect to the initiation of a work stoppage. The Respondent's project superintendent, I find, placed a tele- phone call to Business Manager Burroughs immediately , and the latter advised the shop steward and each of the 8 or IO employees involved, after they were called to the telephone, that no work stoppage had been initiated by the Union, and that work should be continued without interruption. One hour after their scheduled starting time, the men reported for work; most of them were credited with 7 hours of work for the day. (One of the employees advised of union policy over the telephone by the business manager, did not report for work; the record shows that he sought and received employment with another contractor engaged on the Western Kraft Corporation project.) At the end of the day, however-pursuant to Presi- dent Hoffman's direction-the plumbers and pipefitters at the Western Kraft project received their pay in full, and were instructed not to report for work until further notice. The other craftsmen in the Respondent Hoffman's employ received no comparable instruction, and continued to report for work. Western Kraft's management was advised by President Hoffman-despite the as- surances given by Business Manager Burroughs as the representative of the union membership-that the firm "did not anticipate" it would have pipefitters on the job, and that it would have to await the "clearing of that picture" before it could give further consideration to the projected shutdown of the paper mill. 6. Subsequent developments a. The Respondent Members On Monday, March 4, 1957, token crews reported for work with several of the Respondent Association's employer members. In response to an inquiry-in one instance, at least-the men said that Business Manager Burroughs of the Union had advised them to report. They received no work assignments. The record does not establish any further effort by the employees of the associated contractors to report for work, however, in the absence of any definitive agreement between their labor organization and the employers, with respect to a resumption of con- struction activity. No picket lines were ever established by the employees involved. In two instances, at least, some uncertainty appears to have arisen with respect to the employment of servicemen, regularly assigned to emergency repair work on plumbing and heating equipment already installed. In each case , an employer appears to have desired the worker's services, and the employee involved appears to have been hesitant with respect to acceptance. At the Beaver Plumbing and Heating Company in Corvallis, one of four plumbers regularly in the firm's employ was solicited to respond to a March 2, 1957, service call "on his own" and finally agreed to do so. At the Atlas Plumbing and Heating Company, Robert Hansen attempted-both on February 28 and March 1-to persuade his serviceman to re- main at work; the employee reported, however, that C. C. Durkee of the Union's negotiating committee had requested him not to do service work, and that he planned to leave town. On Monday, March 4, 1957, however, the employee reported by telephone that Business Manager Burroughs had told him he was free to do emergency work. He resumed work Monday afternoon as a serviceman. On March 5, 1957, the Union and the Respondent Association resumed contract negotiations. Their conference, however, was inconclusive. WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 941 b. Buchanan, Lord, and Widmer On or about March 5, 1957 , I find Respondents Buchanan, Lord, and Widmer were advised by Counsel Watts that they could resume work. (Donohue's testi- mony establishes his receipt of a telephone call from Watts, in which the latter reported a "rumor" that it would be "all right" to resume work ; he also suggested, I find, that it would be best to do so. Walter Widmer, as a witness, reported the receipt of information from Watts that the situation in the Willamette Valley had been "squared away" to such an extent that it would be "acceptable " to resume work in the area. ) The Respondent Buchanan, apparently, recalled its employees on March 5, 1957, to resume work the next day. The Respondent Lord appears to have taken similar action at the same time, approximately . The Respondent Widmer advised its employee by telephone that the Union had, apparently , given an assurance of its membership's willingness to continue work without a contract , subject to a com- mitment on the part of the employers to make retroactive any arrangements embodied in a final agreement . (Widmer conceded , in cross-examination, that his observation with respect to retroactivity was bottomed upon a presumption ; the record establishes no communication from the Union in this respect .) The Respondent Widmer's em- ployee, I find, actually resumed work on the 7th of the month . All of the men em- ployed by the Respondents designated worked thereafter without interruption, under terms and conditions previously established in conformity with the Union's expired agreements. c. The Respondent Hoffman Despite the layoff of plumbers and pipefitters effectuated at the Respondent Hoff- man's Western Kraft project on Friday , March 1, at the close of business, work at the project continued. The Respondent continued to utilize other craftsmen, without interruption. On March 4, 1957, two plumbers-one , at least, a union steward-reported for work. They were informed, however, that, in the absence of a craft foreman and other craftsmen their services could not be utilized. No further effort to seek work at this Respondent's Western Kraft project appears to have been made by any individual plumber or pipefitter prior to the May 20 termination of the work stoppage in the area, to be noted.4 During this period, however, another contractor engaged at the Western Kraft project, C. C. Moore and Company, continued to work a full crew of plumbers and pipefitters . (The record in this case establishes, without contradiction, that Moore functioned under a "national agreement" with the Union's parent organization ; it apears to be undisputed that contractors privy to such agreements normally continue work without regard to local work stoppages, on the basis of an "assumption" that they will operate under the terms and condi- tions of employment established by local agreement .) A letter from Moore's super- intendent of construction to Business Manager Burroughs , received in evidence without objection, establishes that the firm had eight steamfitters on its payroll as of March 1 ; during the following week there were nine steamfitters in the firm's employ. On March 12, 1957, Moore had 14 steamfitters at work. . Thereafter, its work tapered off for this craft. All of the firm's steamfitter work was completed, ultimately, on May 1, 1957. There is an indication in the record, albeit an inconclusive one, that the expansion in Moore's steamfitter crew on and after March 4, 1957, reflected the employment of several men involved in the Respondent Hoffman's pipefitter layoff. I so find. 7. Further contract negotiations As previously noted, conferences directed to the negotiation of a new agreement were resumed on March 5, 1957. No explicit testimony with respect to the course of the negotiations , at the outset, has been proffered for the present record. At one point, however, the Respondent Association appears to have initiated an unfair labor practice charge against the Union under Section 8(b)(3) of the Act, as amended. In this connection , a conference appears to have been held in the Portland Subregional Office of the Agency on March 14, 1957 ; as a result, I find, the negotiating committee of the Union addressed a letter to the Respondent Asso- ciation which read as follows: 4 The Respondent's project superintendent , however, did testify credibly that Burroughs told him, on two separate occasions during the stoppage , that Hoffman could have men ; his testimony establishes that he thought the Union's business manager was "truly and sincerely sincere" about the offer. And I so find. 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is to confirm our previous notice to you that the members of Local No. 347 are willing to continue working for members of your Employer's Associa- tion and continue negotiations in an attempt to arrive at a satisfactory agree- ment. You are also assured that should a strike ensue from failure to complete negotiations for such an agreement , such strike will not be called against an individual employer member of your association only, but will be called against all such employers with whom the Union may then be in disagreement. A copy of the letter was also delivered to the Association 's committee, then in Port- land for a conference at the instance of the Federal conciliator . On March 16, 1957, a copy of the letter was also dispatched to Respondent Hoffman, I find. After a lengthy conference on the night of March 15-16, 1957, the Respondent Association submitted a written proposal to the Union , with respect to certain un- settled contract issues. In a letter addressed to Business Manager Burroughs dated March 18, 1957, the proposal was offered for the consideration of the union member- ship at a meeting scheduled for the following day. Burroughs was also advised that: If the above proposal is not acceptable the Employers are willing to submit the differences between the last Union proposal and the proposition noted above to a single Arbitrator for his findings and decision, which shall be final and binding upon the parties . If Arbitration is accepted the Employers will agree to immediately open their shops for business and continue to work while this matter is being settled by the Arbitrator. Acceptance of either proposition requires that the members of the Union will immediately report for work at the shop where they were last employed prior to the work stoppage. [Emphasis supplied.] At the Association meeting which authorized the dispatch of this proposal, I find, the organization's negotiating committee was expressly authorized to take action binding upon the Respondent Members and other contractors represented, with respect to the negotiation of a new agreement and a resumption of work. Shortly thereafter, on a date not clearly specified in the record , Collins, Arnett, Blair, Hansen, and another member of the Association's negotiating committee, DeWeese, met informally at Collins ' office; DeWeese, I find, suggested that the Association ought to recommend a resumption of work, and the settlement of the three contract items still open thereafter . His suggestion was adopted. Accordingly, while the Association's proposal was pending before the union membership, on Tuesday, March 19, 1957, President Collins of the -Respondent Association dispatched a second letter to Business Manager Burroughs . Pursuant to an earlier conversation, the Union's business manager was advised, in written form, that: . . . the Willamette Valley Association of Plumbing & Heating Contractors would like to have their men back on the job effective tomorrow morning, March 20th. Collins concluded with a reference to a previous understanding that designated representatives of the Union and the Respondent Association would meet to draft the terms of the contract already agreed upon, and that negotiations would continue with respect to the items yet unsettled. Upon receiving this letter, I find, the Union immediately initiated efforts to advise its membership to return to work. Some of the men were able to return on Wednes- day, the 20th ; the testimony of Burroughs , which I credit in this connection, establishes that the members of the organization were cleared for work as soon as the employers called for them . In some cases , apparently, the employers did not call for a full crew immediately ; this appears to have been the case , for example, at Respondent Hoffman's Western Kraft operation. Arid in some cases , if the men previously at work were found to be in the employ of other contractors, the Union may have been unable to supply immediate replacements ; the extent to which this problem arose , however, has not been made clear in the present record. 8. The agreement Asa result of renewed negotiations a definitive agreement , in all respects, appears to have been reached on April 14, 1957, to be effective as of its execution date. With respect to wages , inter alia , an increase was negotiated , without any provision for retroactivity. At the time of the hearing in this case , I find, the agreement was still in effect. WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 943 B. Conclusions 1. Strike or lockout a. The issue It is the General Counsel's contention, in this case, that the Respondent Members and other employers-at the Respondent Association's direction-closed down their shops, plants, and construction projects on February 28, except for emergency work, and simultaneously laid off all of their employees with union membership, during the pendency of the collective-bargaining negotiations between the Union and the Association in behalf of the member firms of the latter and other employers. With respect to Respondents Hoffman, Buchanan, Lord, and Widmer, the General Counsel charges a similar closure of specific construction projects then under way within the Union's territory, and a layoff of the union members in the employ of the designated Respondents on March 1, 1957; this course of action is alleged to have been taken by the Respondents in concert with the Respondent Association and its employer members. In this context, it is ultimately alleged, in the complaint, that: By closing down their business operations and laying off employees during the course of collective bargaining negotiations with the Union, Respondent Asso- ciation, Respondent Members, Respondents Hoffman, Buchanan, Lord and Widmer, engaged in a lockout, thereby discriminating in regard to tenure of employment of their employees, to discourage membership in the Union . . . . In response , the Respondent Association's counsel has argued that the cessation of business operations by the Respondent Members and the other employers with Asso- ciation representation did not involve employee layoffs, and thus cannot be said to have constituted a lockout; rather, it is argued, the evidence reveals a decision by the union membership to strike, which the membership of the Respondent Asso- ciation agreed to accept. With respect to Respondent Hoffman, it is conceded that some uncertainty may be noted in the record, as to whether the cessation of the plumbing and pipefitting work at the firm's Western Kraft operation should be attributed to a strike or partial employer shutdown. Respondents Buchanan, Lord, and Widmer concede the layoff of their employees on jobs within the Union's juris- diction as of 4:30 p.m. on the 1st of the month; they defend this action, however, as a "reasonable, prudent precaution" in the light of the relevant circumstances. With a threshold issue thus joined, the first question presented for consideration is a question as to whether the stoppages with which this case is concerned were the result of work interruptions initiated by employee action, or the result of a cessation of the furnishing of work by the employers involved. A determination with respect to this aspect of the case, at the outset, is of course essential. b. Analysis (1) Definition of terms Throughout the present record, the issue to which attention is now directed has been persistently characterized as a conflict over whether the work stoppages now under consideration should be attributed to a strike, or to a lockout, in the alterna- tive. Analysis of the issue, therefore, will presumably be facilitated, materially, by a definition of these terms. With respect to the strike concept, at least, a defi- nition is readily available. Section 501(2) of the Act, as amended, defines the term, for present purposes, as follows: The term "strike" includes any strike or other concerted stoppage of work by employees (including a stoppage by reason of the expiration of a. collective- bargaining agreement) and any concerted slow-down or other concerted inter- ruption of operations by employees. This definition, it will be noted, refers only to a concerted work stoppage initiated by employees; considerations of purpose or objective, without regard to their rele- vance in connection with a determination as to the legality of such employee action, are excluded from the definition. The lockout concept, however, despite its fre- quent appearance in recent Federal legislation, has never been statutorily defined. Betts Cadillac Olds, Inc., et al., 96 NLRB 268, 282-283. At common law, it has been described as the cessation (by an employer) of the furnishing of work to employees, in an effort to get for the employer more desirable terms. Iron Molders Union, No. 125 of Milwaukee, Wis., et al. v. Allis-Chalmers Co., 166 F. 45, 52 (C.A. 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7, 1908 ). This definition has received extensive judicial acceptance . See, e.g.,. Jeffery-DeWitt Insulator Co. v. N.L.R.B., 91 F. 2d 134, 137 (C.A. 4); Restful Slipper Co., Inc. v. United Shoe and Leather Workers Union, 174 A. 543, 545, 116 N.J. Eq.. 521; Bankston Creek Collieries v. Gordon, 77 N.E. 2d 670, 674, 399 111. 291; 173 A.L.R. 675, and the cases therein cited. Other courts have relied upon the dictionary definition of a lockout, which is quite similar. Webster's New International Dic- tionary, 2d Ed., p. 1450. Thus defined, the concept has been characterized as one of "ultimate fact" connoting a combination of conduct plus purpose. Betts Cadillac Olds, Inc., et al., supra, 282. In this respect, of course, it differs from the statutory strike definition previously noted. Since the issue posed with respect to the legality of lockout action, in the course of litigation under the relevant Federal legislation, has rarely required a threshold determination as to the origin of the specific work stoppage involved, and since the cases have actually required nothing more than a decision with respect to the propriety of the purpose behind any cessation of work, they provide little guidance for the resolution of the question now under consideration. For the present there- fore-despite the definitions noted-it seems best, in this case, to set aside momen- tarily any consideration of employer objectives. Basically, the issue to be deter- mined, previously noted, requires nothing more than a decision as to whether the work stoppages which actually occurred were caused or initiated by the employers. involved, or by their employees. -Cf. Bogue Electric Co. v. Board of Review, 112 A. 2d 615, 619, 21 N.J. 431 (1956). See, also, "Permissibility of Lockouts, Shut- Downs and Plant Removals," 50 Col. L. Rev. 1123, 1124 footnote 1, and Meltzer,. "Single-Employer and Multi-Employer Lockouts under the Taft-Hartley Act," 24 U. Chi. L. Rev. 70, 71, footnote 6, in this connection. The problem of causation, in short, and the allocation of the ultimate responsibility for the work stoppages,. must be our first concern. (2) Conclusions (a) The General Counsel's case In the light of the available evidence, there would seem to be sufficient justification for a conclusion, in this case, that "final responsibility" for the work stoppages now under consideration ought to be attributed, properly, to the Respondent employers. And I so find. It is, of course, established-in the absence of effective denial-that Burroughs,. while engaged in the contract negotiations, did make several references to the pos- sibility that the union membership would be unwilling to work after the March 1 termination date of the 1956-57 agreements, in the absence of a new compact. And the record does establish, clearly, a poll of the union membership in this connec- tion, early in February apparently; a majority of the members polled appear to have declared their unwillingness to work after the termination of the contracts, absent a new agreement in their place. (As a witness, the Union's business manager did insist that this poll did not involve a formal strike vote conducted pursuant to the organization's constitutional provisions with respect to such votes. And there is evidence available, indeed, from which such a conclusion could be drawn. With respect to the issue now under consideration, however, the informality of the poll would appear to be immaterial. There can be no doubt that, at the very least, it did provide the negotiating committee of the Union with a clear indication of mem- bership sentiment, and that its result was cited at collective-bargaining conferences to strengthen the position of the union negotiators.) On February 23, 1957, the Respondent Members and the other interested employers were advised by letter, explicitly, of the fact that the Union members did not "wish" to continue work with- out a contract, after the termination of the agreements then current. Thus, by February 25, 1957, when the Respondent Association's member firms and various other contractors received the Union's letter, its apparent plan to initiate a work stoppage in the absence of a new agreement, upon the termination of the 1956-57 contracts, was fully revealed. I so find. And, under the circumstances, the em- ployers committed to negotiate through the Respondent Association were, certainly, entitled to assume that work stoppages would, in fact, follow the expiration of their 1956-57 contracts, pursuant to the Union's avowed determination not to work in the absence of an agreement. The night letters of the 27th of the month, however, were obviously intended to reveal a change in the Union's program. The responsible officials of the Respondent Association were expressly advised by the negotiating committee of the employee organization, thereby, that in order to prevent any work stoppages, and in the in- terest of the public health and welfare, the union membership would "continue to WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 945 work" after March 1, and that the Union would "continue to negotiate" for an agreement. (The committee's inadvertent failure to address President Collins and Secretary Arnett of the Association properly may be disregarded as immaterial. Although Collins appears to have been addressed as the organization's secretary, and Arnett as its president, no confusion, I find, developed as a result. The testi- mony of Collins does indicate his awareness of the error, but nothing in the record suggests that he considered it significant.) And the record establishes that Re- spondents Hoffman, Buchanan, Lord, and Widmer were expressly advised that the Union would continue to supply men, for their construction projects, without interruption. The commitment embodied in the night letter, and the promises attributable to the Union's business manager, were not equivocal. They did not rest upon a condi- tion precedent, and no quid pro quo was requested from the Association, its em- ployer member, or the other interested contractors. Upon the entire record, I find the night letters expressive of a determination on the part of the Union's negotiating committee to refrain from the initiation of work stoppages. And the messages which Burroughs delivered, personally or by telephone, to Respondents Hoffman, Buchanan, Lord, and Widmer, may also be characterized as unqualified union commitments to continue supplying plumbers and pipefitters for each firm's construction projects. On their face, I find, these communications-whether written or verbal-were suf- ficient to relieve the Union of responsibility for the initiation of the work stoppages which did, subsequently, occur. (b) Defenses The Respondent Association The Respondent Association's able counsel, however, has characterized the night letters as nothing more than an "abortive attempt" on the Union's part to retract its prior announcement that the membership of the organization did not "wish" to con- tinue work in the absence of an agreement. And several arguments have been ad- vanced in support of this contention. Essentially, it is argued-on various grounds- that the negotiating committee's communication should not be considered sufficient, in the light of the relevant circumstances, to relieve the Union of accountability for the failure of the employees to work for the Respondent Members and certain other contractors, after the termination of the 1956-57 agreements. [1] At the outset it is asserted that the Union's negotiating, committee lacked the authority to "call off" the strike. Specifically, reference is made to the union mem- bership's original indication of its willingness to support a no-contract-no-work policy, and the absence of any secondary poll results indicative of a change in the membership's attitude. The absence of any evidence with respect .to an official an- nouncement of the indicated policy reversal, prior to the dispatch of the night letters, is noted. And a question is raised, therefore, as to whether the negotiating com- mittee had the authority to "call off" the prospective work stoppages, approved by a membership poll, in the absence of a second vote. In the light of the available evidence, however, such considerations cannot be considered weighty enough to raise a real doubt with respect to the significance of the commitment embodied in the night letters. It should be noted that no employer- recipient of the night letters appears to have questioned the authoritative character of the negotiating committee's announcement that the union members would con- tinue to work, specifically, on these grounds. Collins and Arnett, clearly, refused to consider the committee's communication as a significant effort to avoid the imminent work stoppage for other reasons; nothing in the record suggests, in this connection, that they relied upon the absence of information with respect to a second member- ship vote, or the absence of any previous indication by Burroughs of a change in the membership's attitude, or the absence of any proof with respect to the negotiating committee's authority to commit the union membership. The cited arguments, therefore, deserve dismissal as afterthoughts. Even in the face of an assumption that such considerations did, in fact, motivate the decision of the Association officials to "disregard" the Union's commitment to continue work, they cannot be said to provide any sort of adequate justification for the decision in question. The informal character of the membership poll taken with respect to the Union's no contract-no work policy has already been noted; no formal strike vote appears to have been conducted, and there is no indication that any contractor was ever so advised. The poll, under the circumstances, cannot really be said to have tied the 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiating committee's hands; nothing in the record will support an inference that the Association representatives were entitled to consider the Union irrevocably com- mitted to strike action . In addition, if we may assume-as we must, in the light of the only evidence available-the existence of a general "power to act" on the Union's behalf in the furtherance of negotiations , the authority of the committee to announce the abandonment of any intent to initiate work soppages , despite a precatory expres- sion of the union membership to the contrary , must be conceded . ( Particularly so, I find, in the light of the available evidence with respect to a prior occasion when work did, in fact, continue without interruption despite the absence of an agreement.) No contractor-recipient of the organization's February 23 letter actually appears to have questioned the accuracy of the indication therein that the union membership had "stated" previously, somehow, that they did not "wish" to continue work after March 1 without an agreement . The announcement of the Union 's business man- ager appears to have been taken as definitive , without proof. Nor does any ques- tion even appear to have been raised with respect to the authority of Business Manager Burroughs to report the sentiments of the union membership in this fashion. President Hansen of Atlas Plumbing, for example, described the February 23 letter, in his testimony , as a letter in which Burroughs had "told" the employers privy to the 1956-57 agreements that he would not accept their program. Nothing in the available evidence, therefore, will support the conclusion, sug- gested by counsel, that employer skepticism was warranted , in the face of the night letters, with respect to the authority of the negotiating committee to commit the union membership to continue work. [2] The sincerity of the Union 's telegraphic commitment has also been challenged on the ground that no "honest effort" was made by the organization to communicate with its widely dispersed membership, in regard to the policy reversal now in issue. (Reference is made to the record testimony that only 10-12 long-distance telephone calls, at a maximum , were made to notify more than one -half of the union members that the organization no longer planned to initiate a work stoppage immediately after the expiration of the 1956-57 contracts.) The available evidence in this con- nection may, indeed, warrant a factual conclusion that the Union 's effort to com- municate with its membership was not really thorough . Such a conclusion , however, would not, ineluctably, call for a further conclusion that the organization made only a token effort to communicate with its employee members. The testimony of Burroughs establishes, in the absence of contradiction , that each member reached was instructed to advise the other members in his vicinity of the committee 's decision not to initiate a work stoppage . And the fact that some members, presumably, never received the information cannot , properly, be relied upon to impugn the Union's motives. In any event, the available evidence would seem to make it entirely clear that the Union's presumptive failure to communicate directly with each member affected by its decision was not within the knowledge of the Association's officers when they received the night letters. Information, therefore, with respect to the Union's al- leged failure to reach its entire membership , certainly could not have influenced the Association's reaction to the committee's communication . And there is no evidence, in fact, that it did. The Respondent Association's able counsel attempted to suggest , in the course of his examination , the legitimacy of a possible conclusion by Collins that the union committee's telegraphic announcement did not deserve acceptance as a sincere, definitive commitment , because of his previously formed opinion that Burroughs was a vacillating negotiator who frequently changed his mind at the bargaining table. This contention , however, deserves rejection. It rests upon testimony elicited from Collins by leading questions-and it has not , actually, been pressed in the Associa- tion's brief . The statements of the Association president with respect to his opinion of the Union's business manager were conclusionary ; their factual basis was not elaborated . And, in any event , the record establishes that the night letters in issue were sent by the Union's negotiating committee and not by Burroughs alone. [3] It is also argued , in the Respondent Association's behalf, that the night letters- even if the authority and sincerity of the negotiating committee can be assumed- merely constituted an "ineffectual and insufficient " effort to prevent a work stoppage. The telegraphic announcement , for example, is characterized as equivocal because of the committee's failure to describe or suggest the conditions under which work would continue, and because of its failure to indicate the duration of the period for WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC . 947 which the Union's commitment would be good. Logically, however, these omissions cannot be said to have vitiated the immediate significance of the communication. The negotiating committee's declaration, without qualification, that the Union's membership would continue to work created no issue with respect to the terms and conditions of their continued employment which required prior resolution. And the committee's announcement that the employee organization would continue to negotiate for a new agreement certainly may be interpreted, at the very least, as a commitment that no work stoppage would be initiated by the union membership prior to the resumption of contract negotiations. Ambiguities conceivably latent in the situation with respect to either matter-if they were, in fact, cognizable-could certainly have been resolved or presented for later resolution by direct inquiry; there is no evidence in the record that such an inquiry, addressed to the Union's negotiating committee, was attempted or even considered. In substance, the Respondent Association argues, in this connection, that the committee's communication ought to be considered equivocal because of its failure to include a suggestion with respect to the terms of an interim trade agreement as a concomitant of its announcement that the Union's membership would continue to work. The absence of any negotiating committee attempt, however, to condition its commitment upon the Association's acceptance of an interim proposal with respect to terms and conditions of employment would seem to be indicative of forthrightness, rather than equivocation, in its announcement. And I so find. (Hansen, when apprised of the Union's night letter by Collins, commented to the Association's president, I find, that it did not expressly "retract" anything set forth in the organi- zation's February 23 letter, and that the best thing for the contractors to do, there- fore, was to "disregard" it as without significance. Clearly, however, the telegraphic announcement did report a reversal of the union membership's previously expressed "wish" to cease work after the termination of the 1956-57 agreements. It did not, specifically, reveal a retraction of the Union"s previously expressed opposition to the contract proposals of the associated contractors-but Hansen's apparent inference that the bargaining impasse remained unbroken clearly deserves characterization as insufficient to support his further inference that the Union did not really desire a continuation of work.) Reference is made, also, to the fact that Collins and Arnett were the only em- ployers notified of the committee's determination to prevent a work stoppage. This alleged attempt by the Union's negotiating committee to "limit" the distribution of its announcement is contrasted with the earlier willingness of the Union to dispatch the February 23 letter of Business Manager Burroughs to every contractor bound under the 1956-57 agreement. Apparently, it is the contention of the Respondent Association that the failure of the committee to notify every employer privy to the old agreement of its policy reversal will justify the contention that the night letters should be considered insufficient to shift responsibility for the initiation of the work stoppages, in this case, to the employers involved. Superficially considered, this argument may be an appealing one; upon the entire record, however, it must be rejected as unpersuasive. The contract termination notices received by the Union from a majority of the contractors privy to the 1956-57 agreements each contained a "suggestion" that the organization communi- cate with the Respondent Association's secretary with respect to "all matters regard- ing negotiations and signing of any and all agreements" for the year to come. The Respondent Members-and the other contractors privy to the Respondent Asso- ciation's authorization to negotiate and sign agreements-cannot, legitimately, ques- tion the propriety or sufficiency of union action taken pursuant to their own, suggestion. The available evidence, it is true, will support a conclusion that the labor organiza- tion's negotiators did, for some time, withhold an acknowledgment of the Respondent Association's right to speak for all of the contractors privy to the 1956-57 agree- ments. And its business manager's February 23 letter, concededly dispatched to all of the contractors bound by such agreements, did refer, preliminarily, to the Union's willingness to "negotiate in good faith with those members elected by the signors of our agreement" in conformity with past practice. The course of conduct attributable to the Union's representatives, however, cannot he said to have estopped the organization from the adoption of an altered policy-especially one urged by the employers involved; its dispatch of the February 23 letter to individual contrac- tors may clearly be defended as "logical" on the basis of the fact that the 1956-57 agreements which bound these firms were still in effect, and the Union's action, therefore, cannot be said to have foreclosed a different course of action in altered circumstances. 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nothing in the record will support a conclusion that the prior conduct of the union negotiators evidenced an adamant refusal on their part to recognize or deal with the Respondent Association. The employers it represented, clearly, never abandoned the contention that it possessed the authority to negotiate and sign a master agreement in their behalf. If the Union's persistent reiteration of its "willingness" to negotiate a standard agreement with employers represented by a Local Joint Industry Board, as in the past, was actually insufficient, throughout the negotiations, to affect the determination of the associated contractors to negotiate a single master agreement for the multiple- employer unit, the contention that a telegram addressed to the officials of the Respondent Association in a representative capacity would or could reasonably be construed as a personnel communication, must be rejected as unpersuasive. If Collins and Arnett were, in fact, induced to assume that the Union's method of addressing them had no significance, solely because of the Union's previously stated "willingness" to negotiate a standard form of agreement for subsequent execution by individual employers, their reaction surely cannot be characterized as reasonably foreseeable; the Union's negotiating committee, I find, was entitled to believe that they would react to the night letters as Association officials. Even if an assumption is made for the sake of argument, that the antecedent conduct of the union negotiators could have warranted an inference by the employers addressed that the committee's telegram, despite its tenor, had not been addressed to them in a representative capacity, their designation therein as Association officials, certainly, would have put them on notice that the union negotiators, finally, may have intended to recognize them as the representatives of a group of associated employers; Collins, as a witness, conceded, indeed, that he had been "curious" as to the reason why the Union had addressed him as an Association official. And any tentative impression that the Union's action may have been purposive would have been confirmed, of course, by subsequent developments; Collins and Arnett were apparently able to determine, within a short time, that certain other interested employers, at least, had received no similar union communication. Collins, cer- tainly, would have been put on notice with respect to the possible significance of the Union's telegraphic salutation when "Pat" Blair questioned him, specifically, as to the manner in which he had been addressed. Protestations, now, that residual doubts nevertheless existed, at the time, as to the significance of the address which the committee utilized, and that these doubts ought to be considered attributable to the antecedent conduct of the union committee, can only be characterized, under the circumstances, as unconvincing. If, in fact, such doubts existed, an effort to resolve them by direct communication with a committee representative could have been made; no attempt to resolve the indicated doubts has even been alleged. With the advantage of hindsight, of course, one may observe that the Union's negotiating committee would presumably have been well advised-if it really wished to prevent a work stoppage and a resultant loss of employment by some members- to consider a reversal of its no contract-no work policy sooner, and to advise each of the interested employers individually-by letter or wire-with respect to its decision. Upon the entire record, however, its actual course of action does not deserve char- acterization, I find, as a course of action legally insufficient to notify the employers represented by the Respondent Association that no union-sponsored work stoppage would be initiated when the 1956-57 standard agreements terminated. It is also suggested, in the Respondent Association's behalf, that the Union's night letters ought to be considered ineffectual and insufficient to shift responsibility for the cessation of work, in this case, because of their "eleventh-hour . last-minute" character. The suggestion deserves consideration; after analysis, however, I find myself constrained to reject it as deficient in merit. Students of the collective-bargaining process might well conclude-long after the event-that the negotiating committee's apparent unwillingness to consider or report a reversal of its previously articulated no contract-no work policy, prior to the evening of February 27, was ill-considered. Mature, responsible negotiators, in- terested in the achievement of an agreement with a minimal amount of disputation and without a business disturbance, would presumably have been willing, sooner, to suggest a possible alternative to the prospective work stoppage. The statutory obligation of unions and employers to bargain collectively in good faith, however, cannot be construed, legitimately, as an obligation which is not satisfied if one party or the other proceeds upon the basis of a mistaken judgment. N.L.R.B. v. American National Insurance Co., 343 U.S. 395, 409. The nature of the issues at stake, their significance, in a financial sense, to the disputants, and the tensions inevitably as- sociated with the development of an impasse in negotiations, must all be recognized as aspects of the situation to be evaluated. Industrial peace-which the Act, as WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 949 amended, is designed to promote by encouraging the making of voluntary agree- ments to govern the relationship between unions and employers-may not be ad- vanced in the long run, of course, by the enforced negotiation of such agreements "under the gun" of a threatened cessation of work. But the statutory obligation of unions and employers to bargain collectively in good faith, which has been con- sidered to absorb and confirm the "philosophy of bargaining" worked out in the American labor movement, The Order of Railroad Telegraphers v. Railway Express Agency, Incorporated, 321 U.S. 342, 346, has never been construed to foreclose such union conduct, or to proscribe hard bargaining by labor organizations. Com- pare N.L.R.B. v. Cowles Publishing Company, 214 F. 2d 708 (C.A. 9), enfg. as modified 106 NLRB 801, in this connection. A conclusion that any "eleventh-hour . . . last-minute" effort by a labor organiza- tion, involved in the negotiation of a trade agreement, to announce the abandon- ment of a, previously articulated plan with respect to the initiation of a work stoppage must be considered ineffectual, or insufficient to relieve it of responsibility, if a stoppage nevertheless results, would certainly tend to discourage such efforts. And thereby clearly, the likelihood of economic warfare, in many situations, would be increased. The statute which this Agency administers begins with a congressional declaration, however, that: Industrial strike which interferes with the normal flow of commerce and with the full production of articles and commodities for commerce, can be avoided or substantially minimized if employers, employees, and labor organizations each recognize under law . . . that neither party has any right in its relation with any other to engage in acts or practices which jeopardize the public health, safety, or interest. And the promotion of this statutory objective has, at all times, been -a prime Board concern. Certainly it would not be promoted by a naked determination that the failure of the Union's negotiating committee to announce its policy reversal prior to the penultimate moment rendered that announcement nugatory. The suggestion by Collins-in response to a set of leading questions-that no "mechanical setup" existed whereby he could have communicated with all of the other contractors, and that he had no official authority to take action with respect to the Union's announcement, must be rejected. Telephone service was available. And in view of the scope of the business interests likely to be affected by any cessation of work, a determination on his part that protocol might legitimately be disregarded would clearly have been warranted. I so find. It is argued, however, in the Respondent Association's behalf, that the Respondent Members, and the other employers represented by the organization, were in the midst of their preparations for a shutdown when the night letters were received, and that any attempt to reverse the shutdown process would not have forestalled a cessa- tion of work at some construction projects, in any event. In the Association's brief, its able counsel has presented the issue now under consideration, rhetorically, as follows: How can we ignore . the fact that shutdown preparations [precipitated] by the strike notice of February 23 had been under way for several days and could not possibly be unwound in a few hours. It would have been simpler to un- scramble an egg. Reflection however, in the light of the available evidence, will suggest the hyperbolic character of the quoted simile. See Jones v. Securities and Exchange Commission, 298 U.S. 1 (1936), Mr. Justice Cardozo in dissent. The announcement that the Union's membership would continue to work, set forth in the February 27 night letters, did not impose upon the Respondent Members and other contractors the task of putting Humpty Dumpty together again. Nor were they called upon to halt Juggernaut's procession. Upon acceptance of the Union committee's announcement as a definitive indica- tion that work would not be interrupted some of them would merely have been required to redirect the activities of the plumbers and pipefitters in their employ; instead of being assigned to complete the shutdown operation, on the 28th of the month, the employees would have been instructed, presumably, to proceed with a restoration of the status quo ante at several construction projects. Any suggestion that such an immediate reversal of effort by their employees would have been im- possible, or that extended cessations of work could not have been avoided, must be rejected. (The available evidence will not support any conclusion as to the nature and extent of the tasks incidental to a reversal of the shutdown process at the shops 5'.5828-60-vol. 125-61 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or construction projects of every contractor with Association representation. There is testimony which suggests that preliminary work would have been required on some construction projects in order to make possible a resumption of productive activity. Many of the contractors, however, apparently operated service shops only; these contractors would have been able to resume service calls-if acceptance of such calls had, in fact, been suspended-with little or no advance preparation.) It is conceivable, of course, that some of the Respondent Members would have found it necessary to devote more than I day to the preparatory work required for a re- sumption of productive activity previously interrupted, as a result of their decision at the February 26 Association meeting to "accept the strike" which they anticipated. Such preparatory activities, however, would clearly have required a complement of employees; involvement in preparatory work, therefore, cannot be equated with a work stoppage. Expenditures, temporal and financial, would, of course, be a necessary concomitant of any contractor's effort to resume productive activity after a suspension of shutdown preparations, just as they would be necessarily incidental to any work resumption after the effectuation of an actual stoppage. Their in- evitability, however, cannot be considered a sufficient justification for the refusal of a financially qualified employer to make any effort whatever to resume work, or to reverse the shutdown process. And the possibility that some of the associated employers might not have been able to provide preparatory, or productive work for a full employee complement on March 1 cannot excuse the failure of the employers in question to offer such employment to some, in order to ready various projects for a resumption of regular productive activity. [4] Upon the entire record, I am satisfied that the Union's telegraphic communication, now in issue, deserved consideration as an effective announcement that the member- ship of the organization would continue work without an agreement. And any contention that the plumbers and pipefitters in the employ of the associated con- tractors initiated the work stoppages with which we are concerned deliberately, pursuant to a viable union policy, must therefore be rejected. I am satisfied also, and find, that Collins and Arnett-under the circumstances-were not really confused or left in doubt as to the sincerity, sufficiency, or significance of the union committee's telegraphic announcement, and that their decision not to acknowledge it in their representative capacity, or to suggest a suspension of the widespread shut- down activity which the contractors committed to Association representation had already initiated, derived from other considerations, substantive in character. The testimony of "Pat" Blair suggests that he, at least, may have been concerned with the preservation of Association unity in the face of the Union's new program; he appears to have counseled Collins that a decision to suspend shutdown prepara- tions ought not to be made by the Association leadership, and that the contractors represented by the organization, properly: . . . would have to decide whether they would accept the contents of this tele- gram on face value or not. Upon the entire record, however, I am satisfied that Blair's suggestion did not receive serious attention. There is not the slightest indication that the leadership of the Association ever considered calling a meeting of the organization to decide whether the contractors represented ought to continue or resume work, on the basis of the Union's telegraphic commitment. My conclusion that Collins and Arnett did not, actually, consider the night letters an "abortive" effort to call off the previously pro- jected work stoppage has already been noted; it would seem to follow that their failure to call an Association meeting, in the light of Blair's observations, can only be explained, rationally, on the basis of an inference that they did not, really, wish to see the shutdown preparations of the associated contractors interrupted. And I so find. An attempt to analyze the significance of the considerations which impelled Collins and Arnett to determine, sub sU ntio, that cessations of work ought to be permitted to eventuate within the multiple-employer group will be found elsewhere in this report. Before the attention of the parties may be directed to this question, how- ever, an additional contention advanced by the Respondent Association's able counsel must be considered. [5] Each contention advanced in the Respondent Association's behalf and thus far analyzed has been predicated, of course, upon an assumption that the conduct attributable to the union committeemen during the contract negotiations fore- WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 951 shadowed a work stoppage, to be initiated by the employees after the termination of the old agreements. Upon that assumption, for various reasons, Respondent Association has requested a determination by this agency that the union negotiators had, in substance, threatened a strike, and that the night letters now in issue merely reflect an abortive effort to prevent the threatened cessation of work, or, in the alternative, to escape responsibility for any purposive work stoppage which might actually develop. No such determination has been found warranted. The Association's counsel, however has also presented for consideration a related argument that the work stoppages now in issue did not reflect the purposive prosecu- tion of a strike plan previously approved by the union membership, but developed, instead, as a result of the "confusion" engendered by the situation. In the brief filed on the Association's behalf, this contention is stated as follows: The first issue is whether the employees were locked out or struck or whether the work stoppage resulted from complete confusion on the part of employees engendered by the Union's off-again-on-again tactics. This latter possibility is in many ways the most credible. Employees thought that they were going to strike on March 1, 1957. They had voted to strike on that date if they had no contract; the Union had advised their employers both by letter and orally that there would be no work after that date absent a contract. That the employers believed this is clear. Employees started buttoning up their employ- er's jobs without being asked to, started looking for other employment, and failed to report for work or refused to work on March 1. There is no question that they were confused and there is no question that the employers were con- fused as to the union's strike intentions. There is no single instance reported of an employee [advising] his employer on February 28, or before, that he would be available for work on March 1. On the contrary, apparently all were either expecting the strike or uninformed. [Emphasis supplied.] This argument, however, is predicated, in turn, upon an assumption that the employ- ees of every contractor represented by the Respondent Association took the initiative with respect to the actual cessation of their work which followed the termination of the 1956-57 agreements, despite the attempt of the union negotiators to forestall such action. For example it is asserted that nothing in the available evidence reveals the willingness of a single employee to work after the termination of these agree- ments; counsel argues, instead, that the "only" evidence available reveals the unwill- ingness of the employees to work. The contention is therefore made, in the Respondent Association's behalf, that the occurrence of a "lockout" rather than a strike, has not been established, in the absence of evidence sufficient to show a refusal on the part of the employers involved to allow their employees to work, despite the readiness and willingness of the employees to do so. And, in the Association's brief, it is asserted that: The critical test is what the employees did, not what the eleventh-hour telegram said they were going to do. [Emphasis in original.] This last contention, however, reflects a misconception of the issue. If any conclu- sion with respect to the existence of a lockout, so-called, must rest upon substantial evidence of "employer action" specifically intended to prevent a continuation of work by employees, or reasonably calculated to achieve that result, the critical judgment required will necessarily involve an evaluation of the action taken by the employers, not that of the employees involved, after the "eleventh-hour" telegrams were sent and received. With the issue thus formulated, an evaluation of the record will, ineluctably, compel any trier of fact to conclude that the union members in the employ of the contractors with Association representation were, in fact, deprived of an oppor- tunity ,to continue work as a result of employer action, and that their readiness and willingness to work after the termination of the 1956-57 agreements, actually was not tested before their employment was suspended. The available testimony, it may be noted, does leave some room for doubt as to whether the specific agreements in question were drawn to provide for their own expiration, in the event of a formal termination, at midnight on February 28, or sometime on March 1, 1957. The notices received by the Union each expressed a "wish" that the agreements be considered terminated effective March 1, 1957; the notices dispatched by the labor organization refer to this date, however, as the expiration date of the agreements. The February 23 letter, previously noted, contained a statement that the union members did not wish to continue work after March I without an agreement, and the night letters now under consideration included a specific commitment that the organization's membership would continue 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to work "after the March 1st expiration date" of the terminated agreements. Under the circumstances, there may well be some justification-despite a casual reference by Burroughs to March 1 as the day after the agreements expired-for a conclusion that the agreements now under consideration did not really lose their effectiveness until March 1, some time after the close of the working day, and that the cessations of work with which we are concerned, therefore, began prior to their actual expira- tion date. Such a factual conclusion would, of course, lend added support to an inference that the work stoppages were initiated by employer action. No copies of the 1956-57 agreement were proffered in evidence, however, and the doubts left hanging as a result cannot be resolved. For present purposes, therefore, it may be assumed that the agreements did, in fact, expire subsequent to the close of business on February 28, 1957. 1 so find. The available evidence with respect to a limited number of contractors clearly establishes their assumption of the initiative in regard to a cessation of productive operations; at each shop or construction project with respect to which testimony was received, the employees were notified by an employer representative that work would be suspended. And in every case, but one, they appear to have been paid off in full for their services. (The record does contain testimony by Collins that his employees notified the general contractor on their project, by Tuesday, February 26, with respect to the imminence of a plumber's stoppage; that they were nevertheless "surprised" to see the February 23 letter signed by Burroughs when Collins showed it to them on Wednesday the 27th; and that they continued their shutdown prepa- rations on the 28th of the month, despite their presumptive awareness of the union committee's telegraphic attempt to commit them to continue work. Collins, however, ultimately conceded his issuance of Wednesday instructions that the "stuff" used by the men on his job should be locked up on the 28th of the month.) When ques- tioned as to his reaction to information that that Union's committee had announced the willingness of its membership to continue work, Robert Hansen testified that: This [February 23] letter that was sent out . . . was very definite as to what the Union intended to do, and it appeared that the only thing that we could do was to take their plan and go ahead and that's exactly what we [Atlas Plumbing and Heating] worked out to do. [Emphasis supplied.] Hansen's testimony also establishes that an inquiry by the Union's president as to whether its telegram had been received was answered with the observation that he was aware of the wire but "confused" as to its intent, and that he had decided to disregard it. The significance of this testimony as a concession, in substance, that the stoppages were the direct result of the initiative exercised by the employers would seem to be patent. In the case of Atlas Plumbing and at least one other contractor, it is true, em- ployees were supplied with a copy of Secretary Arnett's February 27 letter to the Union's business manager, which reported the agreement of the contractors with Association representation to "accept the instructions" previously publicized by the Union with respect to the unwillingness of its membership to continue work after March 1, in the absence of an agreement. The dissemination of Arnett's letter, of course, may be open to interpretation as an effort on the part of the two employers involved to advise their employees that the work stoppage initiated by their layoff would be considered a strike. This Agency, however, cannot overlook the fact that the employee recipients of this communication had not yet been involved in any "refusal to work" or "failure to report" for employment. At the construction projects of the employers in question, therefore, the situation cannot really be said to have reached the point, argued by counsel, at which it could have been determined that the employees were, actually, unwilling to work. Cf. Giustina Bros. Lumber Co., 116 NLRB 700, 730, enfd. 253 F. 2d 371 (C.A. 9). I so find. In the absence of evidence sufficient to establish that any contractor represented by the Respondent Association elected to follow a different course, it must be as- sumed that each of the associated employers laid off its employees under similar circumstances. The failure of all the employees affected to report for work subsequently, there- fore, cannot really vitiate the significance of the evidence noted. They had been laid off at the close of their day; any attempt on their part, thereafter, to report for work in a body would have constituted nothing more than a futile gesture. The readiness and willingness of the employees to work without interruption, in short, could only have been tested by the provision of an opportunity for their work to continue. And since the action of the associated contractors at the close of business on February 28, served to deprive the employees in question of the opportunity to demonstrate a readiness and willingness to work, thereafter, ultimate responsibility WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 953 for the initiation of the resultant work stoppages cannot, properly, be attributed to the latter. There is, of course, testimony in the record which would tend to establish, in the absence of contradiction, that ^a few employees did reveal unwillingness to accept emergency service assignments immediately after the initiation of the stoppages. In each instance, however, the assignments were ultimately accepted. One employee appears to have acted upon his own initiative ; the other resumed employment as a serviceman, I find, after a consultation with the Union's business manager. These isolated incidents, obviously, cannot be considered significant :enough to impair the validity of a conclusion that the contractors must bear the ultimate responsibility for the work stoppages; they suggest a desire for solidarity within the Union's mem- bership-and the unwillingness of unionized employees to seek escape, individually, from the burdens imposed upon the entire membership of their organization by the stoppages-.at least as persuasively as they seem to suggest widespread confusion, or the deliberate initiation of a work stoppage by the employees. Upon the entire record, therefore, the alternative contention of the Association's counsel that operations were suspended by the associated contractors as a result of the unwillingness of their employees to continue work, because of their complete confusion, must be rejected. (c) Subsequent developments The conclusion reached as a result of this analysis, that the ultimate responsibility for the suspension of operations now in issue must necessarily be laid upon the associated contractors, finds additional support in their subsequent conduct. On March 3, 1957, for example, Earl Forsyth received a call from another contractor, Floyd McFee; the latter requested Forsyth's advice as to whether he ought to resume work in view of his commitments. Nothing appears to have been said about a settlement with the Union on McFee's part as a condition precedent to such a re- sumption. Forsyth's testimony establishes, however, that McFee was told he would have to make any decision to resume work himself. This advice, I find, reflects a tacit acknowledgment by Forsyth that his fellow contractors had some freedom of choice in the matter. Such an acknowledgment, however, would have been in- compatible with any genuine belief that the associated contractors had, in the final analysis, merely "accepted" employee-initiated work stoppages. When contract negotiations were resumed on March 5 , 1957, no effort appears to have been made by the Association representatives to solicit a resumption of work by the Union's membership, subject to any stated conditions. And on March 14, 1957, when the negotiating committee of the Union advised the Respondent Association, by letter, of the willingness of its members to "continue working" and continue negotiations, the offer to resume work pending a contract settlement, im- plicit in this confirmation of the Union's previous telegraphic declaration , was not accepted. The record, indeed, gives no indication that it was even considered, or that the union negotiators were even questioned as to whether the membership's offer was in any way conditional. Elsewhere in this report it has been noted that on March 18, 1957, the Respondent Association submitted a contract counterproposal to the Union herein; the willing- ness of the associated contractors to submit some of their differences with the Union to arbitration was therein reported, and the labor organization was advised that if arbitration were accepted, the employers would agree to open their shops for business immediately and to continue operations pending an arbitral settlement. Finally, note has been taken of the fact that the oral agreement of March 19, 1957, with respect to a resumption of work was made explicit in a letter dispatched by President Collins to the Union's business manager, which reported that the associated contractors "would like to have their men back on the job" the next day, despite the absence of a contract settlement . Collins, I find, also advised the con- tractors by telephone that a decision had been reached to resume work and continue negotiations. This course of conduct, attributable to the associated contractors after their suspension of operations , clearly reveals an implicit acknowledgment of their re- sponsibility for the initiation and continuation of the work stoppages. On the basis of their conduct, I find that such an acknowledgment of responsibility may be in- ferred. (Reference should also be made to Blair's testimony, which I credit, in this connection. It establishes that the Respondent Hoffman's president-shortly before the March 18 Association meeting-had informed the labor relations consultant of the "pressure" he was under to complete the Western Kraft project , and his desire to resume work. According to Blair, Hoffman had been advised that the associated 954 DECISION, S OF NATIONAL LABOR RELATIONS BOARD contractors would "prefer" a decision on his part not to resume work before the other people yin the Association did, but that the decision was his to make. In the absence of any indication that a contract settlement by the Responden Association or Hoffman was expected shortly, this conversation clearly reflects a consensual understanding that a voluntary resumption of work by any contractor without •a settlement, was possible.) There is a suggestion in the record, also, that the decision of the associated contractors to resume work may have been influenced by their belief that one or more of the firms represented by the Association might become liable for damages under penalty clauses on new construction projects, if the work stoppages continued. Without regard to the actual justification, if any, for this belief-with respect to which no conclusion need be reached-its existence as an operative fact would seem to provide additional support for an inference that the offer to resume work initiated with the employers involved, and that the Union's reaction constituted an acceptance. In its total context, therefore, the agreement obviously reflects something more than a mere unilateral acknowledgment by the contractors of their accountability for the suspension of operations; it reflects, addi- tionally, the mutual understanding of the Association and union negotiators with respect to the allocation of the final responsibility for the stoppages. And I so find. (d) Conclusion At this point, then, the conclusion would seem to be inescapable that the work stoppages with which this case is concerned reflect a "cessation of the furnishing of work" by the employers involved. Elsewhere in this report, the question posed, in this connection, has been described as one calling for a determination as to whether "final responsibility" for the initia- tion of the work stoppages should he laid upon the employers or their employees. In resolving similar issues under an unemployment compensation statute which provides for the disqualification of claimants rendered idle as the result of a labor dispute, except in lockout cases, one court has observed that: The negotiations are relevant to show the history of the negotiations and the attitude of the parties, but .the ultimate and crucial question is: What occurred after negotiations ceased, or failed to produce an agreement, and what and who caused the work stoppage? (Emphasis in original.) Hogan v. Unem- ployment Compensation Board of Review, 83 A. 2d 386, 391; 169 Pa. Super 554, 562. And, applying this test, the same court has recently held employer action the "final cause" of a work stoppage, in a case very similar to the one now presented. Kendall Refining Company V. Unemployment Compensation Board of Review, 142 A. 2d 749, 752; 184 Pa. Super 95. I have found the court's formulation useful ; essentially, my conclusions in this case reflect an effort to apply the test indicated to the rele- vant facts. By way of summation: The course of conduct attributable to the union negoti- ators, immediately prior to the stoppages, effectively shifted the initiative with respect to -their consummation to the associated contractors. And the failure of the Association's accredited representatives thereafter to acknowledge, publicly, the significance or sufficiency of the Union's "eleventh hour . . . last minute" deter- mination to prevent the stoppages, or to communicate the substance of the union committee's announcement to the other contractors involved, must be characterized as 'a failure on the part of these officials to exercise the initiative thus conferred upon them to forestall the work stoppages which the associated contractors had previously agreed to "accept" as inevitable. This failure, on the part of President Collins and Secretary Arnett specifically, to seize the opportunity provided for the avoidance of industrial strife must be attributed, of course, to all of the con- tractors represented by the Respondent Association; and their failure, individually and collectively, to take action reasonably calculated, under the circumstances, to prevent any cessation of work clearly must be considered equivalent to the acceptance of "final responsibility" for the initiation of the work stoppages which ensued. Kendall Refining Company v. Unemployment Compensation Board of Review, 142 A. 2d 749, 752, 184 Pa. Super 95; cf. McGraw Wool Co. v. Board of Review, 106 A. 2d 652, 176 Pa. Super 9; Hogan v. Board of Review, 83 A. 2d 386, 169 Pa. Super 554. 1 so find. The Respondent Hoffman It is argued, in the Respondent Hoffman's behalf, that the suspension of plumbing and pipefitting work at the Western Kraft project, after the 1st of the month, did not involve a layoff of the employees. In this connection, the brief submitted in WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 955 Hoffman's name, after a brief reference to the situation which developed early on March 1 at the Western Kraft project, has summarized the available evidence as follows: Hoffman's superintendent at Kraft called Mr. Hoffman in Portland and reported the problem. Mr. Hoffman was concerned with whether the men would return for work Monday. The Superintendent could not learn from the men or from Mr. Burroughs whether they would be there Monday. Mr. Hoffman instructed the superintendent to pay the men and give them plenty of time to pick up all the equipment and tools in case they should not come back Monday, for the loss of tools on the Kraft job had been particularly serious. The superin- tendent was not told to lay the men off. The superintendent did as instructed. He did not tell the men that they were laid off. He paid them and they picked up their tools. The job was generally confused, and neither the superintendent nor the company knew what was going to happen. [Emphasis supplied.] Upon the entire record, however, this evaluation of the testimony must be rejected. While it is clear that some of the plumbers and pipefitters at the Western Kraft operation did attempt to initiate a stoppage on the date now in question, their efforts were abandoned, immediately, when the Union's business manager instructed them to resume work. And nothing in the record, certainly, will support the conclusion, suggested in this respondent's brief, that their resumption of work was temporary. (The firm's job superintendent did testify that he was unable to learn whether the men would be at work on Monday, March 4, 1957, or thereafter. When questioned, with respect to this aspect of his testimony, however, the superintendent was unable to report or summarize the conversation in which he failed to acquire this informa- tion. Nothing in his testimony, therefore, would warrant an inference that he queried Business Manager Burroughs or his employees in this connection directly, or that such an inquiry, if made, elicited a noncommital response.) Ultimately, in the contractor's brief, it is conceded that the suspension of its plumbing and pipefitting operations, at the Western Kraft project, resulted from a management decision; reference is made, therein, to the testimony of President Hoffman revelatory of a concession that the firm's job superintendent was instructed to day off the plumbers and pipefitters at the project on Friday, March 1, at the end of the day. (President Hoffman's testimony does suggest, at several points, that he may have given these instructions to the job superintendent on Thursday, Febru- ary 28, with respect to action to be taken on the following day. His ultimate version of the situation, however, will only warrant a factual finding that his in- structions were issued on the first of the month, after his receipt of a report with respect to the project developments earlier that day. And the testimony of Project Superintendent Ewing would support this conclusion. For present purposes, I find it unnecessary to resolve this ambiguity; my conclusions with respect to the Respond- ent Hoffman's commission of unfair labor practices, if any, will be predicated upon an assumption, for the purpose of analysis, that his layoff instructions were issued on March 1.) Despite his initial unwillingness to concede a layoff, the Re- spondent Hoffman's project superintendent ultimately admitted-when subjected to recross-examination-that he was so instructed. His testimony, in this con- nection, reads as follows: Q. (By Mr. Latimer.) When did you know that you were going to pay them off on Friday, Mr. Ewing? A. Oh I would say it was probably around between 10 and noon. Q. Who did you talk to about it? A. To the best of my knowledge I talked to Eric Hoffman in the Portland office. Q. Do you remember whether or not he said anything to you about closing up shop and going along with the other contractors in this area? A. No, he didn't. He wouldn't make a statement like that to me. Q. All he told you was to pay them through Friday and lay them off, is that right? A. That's right. In addition, the testimony of Respondent Hoffman's piping manager establishes his effort to explain to Burroughs during the afternoon of March 1, over the telephone, why the firm felt it necessary to "close down" the Western Kraft operation. Regard- less of the record's failure to establish that the plumbers and pipefitters affected by his decision were expressly advised of the Respondent's intention to lay them off, the available evidence will fully support a conclusion that they understood the 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD situation. Respondent Hoffman's regular payday at the Western Kraft project was Friday, for a payroll period ending on the Wednesday previous. On March 1, 1957, however, the men were paid off in full and permitted to collect their tools. Such action, the firm's contention to the contrary notwithstanding, would clearly justify an inference by the employees involved that the Respondent intended to suspend or terminate their employment. With respect to Respondent Hoffman, therefore, it is concluded that the work stoppage which affected the plumbers and pipefitters at the Western Kraft operation, on March 4, 1957, and thereafter, resulted from the firm's decision to cease furnish- ing work. Any contention to the contrary, in the Respondent's behalf, is rejected. Respondents Buchanan, Lord, and Widmer Elsewhere in this report it has been noted that these Respondents have made no attempt, whatever, to deny responsibility for the suspension of their operations within the Union's territorial jurisdiction. No issue in this connection, therefore, is presented. 2. The objectives of the Respondent Employers a. The issues The complaint of the General Counsel in this case, previously noted, charges that the -Respondent Member, by the, closure of their business operations and the layoff of their employees during the course of collective-bargaining negotiations with the Union herein, engaged in a lockout and thereby discriminated in regard to the em- ployment tenure of their employees to discourage union membership. In this con- text, obviously, the reference to a lockout necessarily implies that the action of the employers involved, because of its inevitable effect and presumptive objective, con- stituted an unfair labor practice. The contention has been articulated in the Gen- eral Counsel's brief as follows: The obvious purpose of this lockout was to enable the Respondent Employers to increase the pressure on the Union to abandon its demands and accept the Employer's [sic] offers . . . The Employers merely participated in a con- certed lockout in order to strengthen their bargaining position and undermine the Union's. Not only is there no express protection of such activity in the Act, but such activity in fact interferes with the rights guaranteed employees by Section 7 of the Act by locking them out in retaliation for their threat to exercise their right to engage in concerted activities protected by Section 7 of the Act. [Emphasis supplied.] Counsel for the Respondent Association, however, argues by way of defense that if some "individual" employers did initiate a lockout, it was clearly defensive and privileged, rather than retaliatory. With respect to the Respondent Hoffman, spe- cifically, it is argued-upon the assumption, for the sake of argument, that the firm's plumbers and pipefitters were laid off-that the decision of the Respondent' s presi- dent to take such action should be characterized as a "defensive" reaction reasonably calculated to protect the Respondent's business from the hazards created by the Union's previous strike threats, the confusion which resulted, and the ultimate po- tentiality of "extreme" economic loss. Respondents Buchanan, Lord, and Widmer defend their temporary employee layoffs, which are conceded, as a "reasonable, prudent precaution" under the relevant circumstances; they insist that the pos- sibility of a union decision to "withdrawn" the members of the organization in their employ, for the purpose of creating added pressure upon the employers with As- sociation representation, suggested, in turn, the resultant possibility that material and equipment would be lost, that the public would be endangered, and that the existing "good relations" between these Respondents, on the one hand, and the various owners and other contractors at their construction projects, on the other, would be im- paired. It is argued, in behalf of these Respondents, that the stoppages which had already been initiated, at the various shops and construction projects staffed by the contractors with Association representation, compelled the Respondents in question to "clarify their position" in relation thereto, and that the temporary layoffs which they effectuated as a result-until the situation could be "correctly assessed" as to its effect upon them-were not discriminatorily motivated and had no discriminatory effect. With the issues thus joined, an evaluation of the objectives legitimately attributable to the respondent employers-whether expressly acknowledged or necessarily im- plied-must be attempted. WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 957 b. Applicable principles It is clear that a lockout may be considered an unfair labor practice-under the Act, as amended-only if its underlying purpose, or necessary effect, reflect the in- tent of an employer, whether acknowledged, covert, or merely inputed, to interfere with, restrain, or coerce employees in the exercise of rights statutorily guaranteed, or to discriminate with respect to their employment tenure for the purpose of dis- couraging union membership and activity. This Agency, therefore, has consistently affirmed an employer's right to shut down, transfer, or suspend operations, tem- porarily or permanently, when the available evidence clearly warrants a conclusion that his action was motivated by business considerations only, and that it was not reasonably calculated to interfere with the statutory rights of employees. Valley Steel Products Co., 111 NLRB 1338; Seaboard Packing Company, 107 NLRB 1295; E-Z Mills, Inc., 106 NLRB 1039; Brown Truck and Trailer Manufacturing Company, 106 NLRB 999; Krantz Wire & Mfg. Co., 97 NLRB 971; Trim fit of California, Inc., 101 NLRB 706; Auto Stove Works, 81 NLRB 1203; R. J. Lovvorn d/bla Georgia Twine & Cordage Company, 76 NLRB 84; Brown-McLaren Manufacturing Com- pany, et al., 34 NLRB 984. Cf. Ballston-Stillwater Knitting Co., Inc. v. N.L.R.B., 98 F. 2d 758 (C.A. 2), setting aside 6 NLRB 470; Mount Hope Finishing Company v. N.L.R.B., 211 F. 2d 365 (C.A. 4), setting aside 106 NLRB 480. Whenever an em- ployer's decision to shut down, transfer, or suspend operations coincides with an effort by his employees to exercise the rights which the Art guarantees, however, questions with respect to the employer's "true purpose" must, necessarily, be re- solved. N.L.R.B. v. Jones and Laughlin Steel Corporation, 301 U.S. 1. In the resolution of such questions this Agency, with judicial guidance and approval, has evolved several decisional principles. These have been explicated, largely in three types of cases. To their consideration, therefore, this report now turns. (1) The lockout as part of a coercive scheme If the available evidence, in any case, will preponderantly support a conclusion that the employer involved suspended operations with an overt or covert intent to interfere with, restrain, or coerce employees engaged in the exercise of rights statutorily guaranteed, or that he took such action in pursuit of a plan or scheme reasonably calculated to undermine or destroy a union, his conduct will clearly be subject to characterization as an unfair labor practice. Thus, for example, a lock- out has been held to constitute an unfair labor practice when it has been found, upon the entire record, to be a reprisal for union activity. Sam Wallick, et al., d/bla Wallick and Schwalm Corp., et al., 95 NLRB 1262; enfd. 198 F. 2d 477 (C.A. 3). The suspension of operations by an employer, also, has been found unlawful when initiated to combat or forestall the unionization of employees. Long Lake Lumber Company, et al., 34 NLRB 700, enfd. 138 F. 2d 363 (C.A. 9); Piedmont Cotton Mills, 79 NLRB 1218, enfd. 179 F. 2d 345 (C.A. 5); Somerset Classics, Inc., et. al., 90 NLRB 1676, enfd. 193 F. 2d 613 (C.A. 2). And similar conclusions have been reached on the basis of an agency determination that work was suspended by an employer for the purpose of discouraging union membership, Cape County Milling Company, 49 NLRB 226, enfd. 140 F. 2d 543 (C.A. 8), or compelling employees to join a company-dominated union, Cowell Portland Cement Company, 8 NLRB 1020, and 40 NLRB 652, enfd. as modified 148 F. 2d 237 (C.A. 9). Work stoppages and plant shutdowns initiated by employer action have been held unlawful, also, when this Agency has found them motivated by a desire to avoid collective bargain- ing, or a desire to evade contractual obligations embodied in a trade agreement. J. W. Dickey, et. al., d/bla Ohio Hoist and Manufacturing Company, 108 NLRB 561; Gerity Whitaker Company, et. a!., 33 NLRB 393. Additional case citations would appear to be unnecessary. When the verbal statements or conduct of an employer respondent clearly reveal his hostility to unionization, and an intent to forestall the effective exercise of rights statutorily guaranteed, any shutdown, trans- fer or suspension of operations reasonably calculated to accomplish the employer's purpose will be considered an unfair labor practice. (2) The lockout as a collective-bargaining tactic Under certain circumstances, of course, it is conceivable that an employer may resort to the lockout as a pressure device, without an affirmative indication of his interest in a statutorily proscribed objective, while pursuing certain substantive col- lective-bargaining goals. The Respondent Association's able counsel, has char- acterized the lockout, utilized for this purpose, as a "planned offensive economic weapon" corollary to a union's right to strike. (In a collective-bargaining context, 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of course, history suggests that the lockout will not always be used as an offensive economic weapon; in the event of a bargaining impasse it could, conceivably, be utilized to fortify an employer's defensive insistence upon the maintenance of wage rates and conditions of employment currently effective.) At common law, of course, reliance upon the lockout as an economic weapon, to facilitate the achievement of a collective-bargaining objective, was considered entirely lawful. Iron Molders Union, No. 125 v. Allis-Chalmers Co., supra. Elsewhere in this report, reference has al- ready been made to the definition of a lockout, in the cited case, as a cessation of the furnishing of work to employees in an effort to get for the employer more de- sirable terms. And in its decision, the court of appeals observed that: For another thing that must not be forgotten is that a strike is one manifesta- tion of the competition, the struggle for survival or place, that is inevitable in individualistic society. Dividends and wages must both come from the joint product of capital and labor. And in the struggle wherein each is seeking to hold or enlarge his ground, we believe it is fundamental that one and the same rules should govern the actions of both contestants. For instance, employers may lock out (or threaten .to lock out) employees at will, with :the idea that idleness will force them to accept lower wages or more onerous conditions; and employees at will may strike (or threaten to strike) with the idea that idle- ness of the capital involved will force employers to grant better terms. These rights (or legitimate means of contest) are mutual and are fairly balanced against each other. The legality of the common law lockout thus characterized, under current Federal legislation, has never, however, been clarified. No cases have been cited by counsel as determinative of the question, and my own research has revealed no case in which a determination with respect to the legality of the lockout as an offensive or de- fensive economic weapon, absent affirmative proof of unlawful intent, has been re- quired. The theory of the General Counsel's complaint, previously noted, seem- ingly calls for a Board determination of this question; conceding that the case is one of first impression, he nevertheless argues that the concerted lockout action - of the Respondent Members undertaken to strengthen their bargaining position and un- dermine the Union's, was illegal. This Agency, at one time, did maintain that the successful attempt of a group of associated employers to initiate a temporary lockout-after the development of a bargaining impasse, and a subsequent strike by the employees of one group member- specifically to combat the union's reliance upon economic pressure, constituted an unfair labor practice. Morand Brothers Beverage Co., et al., 91 NLRB 409, 99 NLRB 1448; Albert Leonard, et al., d/b/a Davis Furniture Company, et al., 94 NLRB 279, 100 NLRB 1016. In the first of these cases also, the Board did observe that absolute legalization of the common law lockout would extend the area of industrial strife, and that it would multiply the possibility of interruptions to com- merce from labor disputes, clearly in derogation of the statutory objectives. The cases noted, however, involved a unique factual situation; each of the employer respondents had locked out its employees-after the development of a deadlock in multiple-employer contract negotiations-to counter the economic pressure created by the union involved through the initiation of a so-called "whipsaw" strike against one member of the multiple-employer group. In this context, the Courts of Appeal for the Seventh and the Ninth Circuits, respectively, reversed the Board and held the multiple-employer lockout to be a lawful economic weapon, corollary to the union's right to strike. Morand Brothers Beverage Co. v. N.L.R.B., 204 F. 2d 529 (C.A. 7); Albert Leonard, et al., d/b/a Davis Furniture Co., et al. v. N.L.R.B., 205 F. 2d 355 (C.A. 9). See also N.L.R.B. v. Continental Baking Company, et al., 221 F. 2d 427 (C.A. 8). And since these court decisions, this Agency has expressly announced its affirmation of the "legal concept" explicated by the Ninth Circuit Court of Appeals in the Davis Furniture case. Buffalo Linen Supply Company, et al., 109 NLRB 447, 448. The Board, however, did not rest its decision, in the cited case, upon the general principle that an employer lockout may be considered the corollary of the statutory right of employees to strike. Its decision was limited, rather, to a determination that: a strike by employees against one employer-member of a multi-employer bargaining unit constitutes a threat of strike action against the other employers, which threat, per se, constitutes the type of economic or operative problem at the plants of the nonstruck employers which legally justified their resort to a temporary lockout of employees. Upon the union's petition for review in the cited case, which reached the Supreme Court ultimately, the latter tribunal likewise found it unnecessary to determine WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 959 whether, as a general proposition , the employer lockout is a corollary of -the em- ployees' statutory right to strike. N.L.R.B. v. Truck Drivers Local Union No. 449, etc. (Buffalo Linen Supply Co.), 353 U.S. 87. It did observe, however, that the lockout may, legally, be used as an economic weapon in some circumstances. The Court's decision , for example, includes the statement that: Although, as the Court of Appeals correctly noted , there is no express provision in the law either prohibiting or authorizing the lockout , the Act does not make the lockout unlawful per se. Legislative history of the Wagner Act, 49 Stat. 449, indicates that there was no intent to prohibit strikes or lockouts as such. The unqualified use of the term "lock-out" in several sections of the Taft-Hartley Act is statutory recognition that there are circumstances in which employers may lawfully resort to the lockout as an economic weapon . This conclusion is supported by the legislative history of the Act. The Supreme Court went on to point out, however, that it was not called upon to define the limits of the legitimate use of the lockout , and that the narrow issue presented for decision merely required a determination as to: . whether a temporary lockout may lawfully be used as a defense to a union strike tactic which threatens the destruction of the employer 's interest in bar- gaining on a group basis. By its formulation of the issue in these words , the Supreme Court clearly indicated its unwillingness, in the cited case, to determine the legality of the common law lockout, utilized by employers-"absent any independent evidence of anti-union motivation"-to exert economic pressure upon employees in pursuit of certain collective-bargaining goals. And the propriety of a lockout, for the purpose indi- cated, thus remains an open question. As an aid to its determination, however, two decisions-one judicial and the other administrative-may be noted. Circuit Judge Learned Hand, in N.L.R.B. v. Peter Cailler Kohler Swiss Chocolates Company, Inc., 130 F. 2d 503 (C.A. 2), has declared, in language frequently quoted, that: We agree that the Act does not excuse "concerted activities," themselves inde- pendently unlawful. [Cases cited.] But so long as the "activity" is not unlaw- ful, we can see no justification for making it the occasion for a discharge ; a Union may subsidize propaganda, distribute broadsides, support political movements, and in any other way further its case or that of others whom it wishes to win to its side. Such activities may be highly prejudicial to its employer; his cus- tomers may refuse to deal with him, he may incur the enmity of many in the community whose disfavor will bear hard upon him; but the statute forbids him by a discharge to rid himself of those who lay such burdens upon him. Congress has weighed the conflict of his interest with theirs and has pro tanto shorn him of his powers . [Emphasis supplied.] Consistently, in a decision involving a single-employer lockout, this Agency recently reaffirmed its statutory obligation to balance conflicting legitimate interests in a collective-bargaining context-and, in the process , to protect employee rights statutorily guaranteed against infringement , absent evidence that the employer action challenged was taken to avoid unusual operative problems or economic losses, over and beyond the ordinary loss of business or customers normally attendant upon any strike. American Brake Shoe Company, Ramapo Ajax Division, 116 NLRB 820. In this connection, the Board observed that: The Act guarantees to employees the right to engage in a strike to secure, among other things, better wages, hours , and working conditions. Strike action is thus a legitimate means of employees to exert economic pressure upon their employer. Its effectiveness as such a weapon depends largely, if not entirely, upon the extent to which a strike disrupts the employer's normal business and business relationships . We believe that Congress, in granting to employees the right to strike, did not intend to grant them a hollow right by, at the same time, allowing an employer to avoid the normal consequences of a strike by anticipatory action which discriminates against employees because of their union activities or otherwise interferes with their rights under the Act. If such anticipatory con- duct were sanctioned , the employer would be immunized from effective strike action, and the employees' right to strike would be rendered virtually meaningless. The applicability of these considerations, in connection with any attempt to evaluate the legality of a lockout as a pressure tactic, will be considered elsewhere in this report. 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) The lockout as a defensive measure Elsewhere in this report, a reference has been made to this Agency's consistent determinations that the suspension of operations by an employer, in the face of a strike or other concerted employee activity, will not be considered an unfair labor practice if his action was actually motivated by economic considerations. The legal right of any employer to take such action-absent any intent to interfere with, restrain, or coerce employees in the exercise of rights protected by the statute- obviously derives from his right to take reasonable steps to "protect and continue" his business, when its effective continuation has been threatened by protected union or concerted activity. Mackay Radio Company v. N.L.R.B., 304 U.S. 333, 345. The decisional doctrine of the Agency, in this connection, has been well summarized in the Betts Cadillac Olds case (96 NLRB 268). In the Intermediate Report which the Board adopted, Trial Examiner Schneider observed, with Agency approval, that: as an employer is not required to close his enterprise because of strike action-though this omission may be in a factual sense a kind of interference with the effective conduct of a strike-neither is he required to continue it if the Union or concerted activity makes efficient operation impossible. While the right of common law lockout may not be the equivalent of the right to strike at all-a question not decided at this point-it does not follow that the employer caught in strike activity must be a sitting duck, stripped of his power to save himself from attendant loss or operative disruption . He has, and needs, the right to protect himself by reasonable measures from harmful economic or operative consequences of a strike. . While he may not close down for the purpose ' of frustrating the exercise of the employees ' statutorily guaranteed rights, he may do so to protect his legitimate interests. An employer is not prohibited from taking reasonable measures , including closing down his plant , where such measures are, under the circumstances, necessary for the avoidance of economic loss or business disruption attendant upon a strike. This right may, under some circumstances , embrace the curtail- ment of operations before the precise moment the strike has occurred. The pedestrian need not wait to be struck before leaping for the curb. The nature of the measures taken, the objective, the timing , the reality of the strike threat, the nature and extent of the anticipated disruption , and the degree of resultant restriction on the effectiveness of the concerted activity , are all matters to be weighed in determining the reasonableness under the circumstances, and the ultimate legality , of the employer's action . Manifestly, where there is no real strike threat, or when the union has given reasonable assurances against a strike, or assurances of notice sufficient to avoid disruption , there is no objective need for protective measures . By the same taken , requirements as to notice may also vary from case to case. . . . The application of broad principles involving the balancing of factors whose weight; both absolutely and relatively, will vary according to the circumstances in which they occur, must necessarily await specific cases. In the course of its case-by-case application of these principles, this Agency has recognized an employer's right to shut down on the basis of a reasonable anticipation that operational difficulties would follow either the exclusion of a department su- pervisor from the plant or the effectuation of a possible sitdown strike, Link-Belt Company (Dodge Plant), et al., 26 NLRB 227, 261-264, and his right to shut down in the face of a threatened interruption in the flow of raw materials, as the result of another work stoppage, Hobbs, Wall and Company, 30 NLRB 1027, 1039-1040. It has -also refused to proscribe temporary cessations of work, in the face of an actual or threatened strike, to prevent material spoilage, Duluth Bottling Association, et al., 48 NLRB 1335, to forestall a work interruption in one of several integrated depart- ments, reasonably to be expected -as the result of work stoppages initiated by the employees in the other departments, International Shoe Company, 93 NLRB 907; cf. Central California Chapter, The Associated General Contractors of America, Inc., et. al., 105 NLRB 767, or to -avoid the possibility of impaired customer relationships and a loss of business patronage, Betts Cadillac Olds, supra; cf. American Brake Shoe Company v. N.L.R.B., 244 F. 2d 489 (C.A. 7), setting aside 116 NLRB 820, previously noted. These decisions have been noted by the Supreme Court with approval. N.L.R.B. v. Truck Drivers Local Union No. 449, etc., supra. In the cited case, for example, the Court observed that: Although the Act protects the right of the employees to strike in support of their demands, this protection is not so absolute as to deny self-help by em- WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC . 961 players when legitimate interests of employees and employers collide. [Cases cited.] Conflict may arise, for example, between the right to strike and the interest of small employers in preserving multi-employer barganing as a means of bargaining on an equal basis with a large union and avoiding the competitive disadvantages resulting from nonuniform contractual terms. The ultimate problem is the balancing of the conflicting legitimate interests. . The Court of Appeals recognized that the National Labor Relations Board has legitimately balanced conflicting interests by permitting lockouts where economic hardship was shown. [Cases cited.] The court erred, however, in too narrowly confining the exercise of Board discretion to the cases of economic hardship. We hold that in the circumstances of this case the Board correctly balanced the conflicting interests in deciding that a temporary lockout to pre- serve the multi-employer bargaining basis from the disintegration threatened by the Union's strike action was lawful. In the light of this decision, it would seem to be clear, as the Association's learned counsel argues, that an employer's right to lock out employees, defensively, cannot be restricted to economic hardship cases, and that the right may be recognized, in- stead whenever the "legitimate interests" of employees and employers collide. (It may be noted, in this connection, that the cases cited by the Court to exemplify the lawful use of the lockout, for the protection of legitimate employer interests, involved only specific economic or operative "hardship" situations, attempts to preserve a multiple-employer bargaining unit in the face of an actual or threatened "whipsaw" strike, or the replacement of economic strikers.) The Court's decision clearly estab- lishes, at the very least, that the interest of a group of employers in the preservation of a multiple-employer bargaining unit against disintegration threatened by a union's "whipsaw" strike action, is a legitimate one, which this Agency may, properly recognize as paramount whenever it conflicts with the right of employees to strike. The opinion, however, does not foreclose a Board determination that other employer concerns-not related to economic hardship situations-may, under certain circum- stances, deserve equivalent recognition as reflective of legitimate interests, which the employer involved may freely promote or protect by lockout action. Thus the possibility that the lockout attributed to the Respondent Members in this case may have been intended to protect or promote such a legitimate employer interest clearly requires exploration. Since the function of balancing the legitimate interests of employers and employees whenever they conflict, to effectuate the national labor policy, is a function com- mitted primarily to this Agency, subject to limited judicial review, N.L.R.B. v. Truck Drivers Local Union No. 449, etc., supra, the claim that other employer interests- not yet identified as worthy of acknowledgment-may have been threatened by a labor organization's attempt to exercise the right to strike, in a specific case, and that the interests thus threatened may be entitled to recognition as paramount, must necessarily be a claim addressed to the Board's discretion, primarily. Some of the factors which the Agency may appropriately consider, in its discretion, will be analyzed and discussed in this report. c. Analysis (1) The Respondent Association (a) Defenses [1] The Respondent Association's counsel, in support of his contention that any lock- outs conceivably initiated by individual employers were defensive and priviliged, argues that the evidence in this case will not justify a conclusion that any of the associated contractors suspended operations to promote a patently antiunion coercive scheme. As counsel himself points out, however, the General Counsel has made no such charge; no contention has been made, in this case, that the associated con- tractors ever took action revelatory of their complete unwillingness to recognize the Union or negotiate a trade agreement. A conclusion that the contractors with Association representation displayed no patent hostility to the Union or unionism, however-and that the record, in short, does not reveal any "affirmative" or "independent" evidence of antiunion motiva- tions-will not be dispositive of this phase of the case. If, upon the entire record, the available evidence can be said to preponderantly support a conclusion that these contractors suspended operations because their employees were then engaged in law- 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ful collective bargaining, through the agency of a statutory representative, this Board may legitimately conclude that the "reasonably foreseeable consequence" of such a course of conduct would be an infringement of the right of employees to engage in collective bargaining, and to be free of employer discrimination based upon their activity, and that the conduct of the contractors, therefore, involved an unfair labor practice. American Brake Shoe Company, Ramapo Ajax Division, 116 NLRB 820, 826. See The Radio Officer's Union, etc. (A. H. Bull Steamship Company) v. N.L.R.B., 347 U.S. 17; Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793. Despite the General Counsel's failure, in short to characterize the conduct of the associated contractors, expressly, as conduct reasonably and neces- sarily calculated to interfere with, restrain, or coerce employees in the exercise of rights statutorily guaranteed, a conclusion that the indicated consequence was rea- sonably foreseeable, that proscribed motives may therefore be attributable to the respondent employers, and that an unfair labor practice was committed, cannot be foreclosed. Its propriety, in this case, will be considered elsewhere in this report. [2] It is also argued that the record will not support any characterization of the lock- out which allegedly took place as an "offensive economic weapon" of the employers involved, deliberately utilized to exert economic pressure on the Union's bargaining position. This contention , of course, raises a significant issue. At the outset, it may be conceded that the evidence might well warrant a finding that: an offensive lockout was never mentioned, was never discussed , was never planned, was never intended, was never threatened, was never attempted. . . . But the Respondent Association 's further assertion that such a lockout was "never performed" must be examined closely. If economic pressures on the union mem- bership, reasonably calculated to undermine the bargaining position of their desig- nated representative, and to strengthen that of the contractors , would necessarily develop as a result of any suspension of operations, a conclusion-supported by evidence-that an intent,to initiate such pressures for the purpose indicated motivated the challenged action of the contractors, and that an "offensive" suspension of opera- tions resulted , would clearly be within the Board 's competence. The Radio Officers' Union, etc. (A. H. Bull Steamship Company) v. N.L.R.B., supra. Despite the Association's extended argument to the contrary, a conclusion that the suspension of operations now in issue was reasonably calculated to exert economic pressure on the Union's bargaining position , and that the intent of the associated contractors to achieve such a result may, therefore , be inferred, need not rest upon an assumption that the various strike threats of the union negotiating committee were not seriously intended , that they were not considered serious by the contractors , that the con- tractors had previously affirmatively agreed to resort to the lockout as an offensive weapon, or that their action reflected an effective anticipation of the Union's "last minute" effort to call off its previously threatened strike. The conclusion indicated need only rest upon a finding that the contractors involved undertook certain con- certed action, and that their action, in its total context , had certain reasonably fore- seeable consequences. Unless the available evidence, therefore, will support the contention made in the Respondent Association's behalf that any lockout action initiated by the associated contractors deserves characterization as defensive and privileged , a determination of its legality as a pressure tactic in a collective -bargaining context-which the General Counsel's complaint explicitly questions-will be required. [3] It is argued, in the Respondent Association's behalf, that the cessations of work attributable to the Respondent Members and certain other contractors , in this case, were defensive and lawful since they were motivated by the reasonable desire of these employers to defend themselves against a threatened strike. This attempt to characterize the motive attributable to the associated contractors, however, cannot be considered -a complete response to the General Counsel's com- plaint. Upon the entire record, of course, it is plain that the employers in question did not make an overt attempt, before February 28, to precipitate economic con- flict, and that their concerted efforts to prepare for work stoppages prior to that date were synchronized with the declared intention of the union membership to cease work after the 195-57 agreements terminated. In the face of the Union's open avowal of a no contract-no work policy, reasonable businessmen would prepare for work stoppages , of course. But the night letters sent by the Union's negotiating WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 963 committee-despite their "eleventh hour" character-clearly reported the determi- nation of the union membership to continue work; taken at face value, they would seem to have eliminated any business necessity for the continuation of shutdown preparations. The decision of President Collins and Secretary Arnett, therefore, to withhold any suggestion that the associated contractors suspend their efforts to prepare for work stoppages, and their implicit decision to eschew any attempt to forestall the February 28 layoffs, can no longer be characterized-regardless of its sincerity-as defensive tactic, patently utilized to counter union-sponsored work stoppages. The contention that the action taken by the contractors was nevertheless defensive, even in the face of the negotiating committee's telegraphic announcement that the union membership would continue work, rests upon several grounds. At the outset an -attempt has been made to analogize the situation involved to that dealt with in the Buffalo Linen Supply case, previously noted. It is asserted that "many" employees expressly refused to work, and that a strike was initiated by "some" of them without information as to the Union's ultimate commitment; the contention is advanced that the strike action taken by these employees, without regard to the negotiating committee's previously expressed wish that work continue, freed the employers to lock out the employees who did not strike-in view of the possibility of such action on their part later. (In the Association's brief, it is argued again-in this connection-that the union committee's attempt to notify the mem- bership of the organization that a decision to continue work had been reached was only partially successful; that the confused employees struck anyway; and that the ''die was cast" once they struck.) The absence of evidence sufficient to sustain this contention , however, has already been noted. Upon the entire record, it has been found that all of the employees affected by the February 28 layoffs were effectively apprised of their employers' intention to suspend operations before the persistence of their prior intention to cease work, assumed herein for the sake of argument, could be verified. (The apparent failure of the laid-off employees to report for work on March 1 and thereafter-with the exception of certain shop stewards and some others-cannot, of course, be cited under the circumstances to establish the per- sistence of an intention on the part of the union membership as a whole to refrain from work in any event. The Association's counsel has referred to the absence of any "quick regretful offer" by the Union to have the men come back to work. Such a suggestion by the union negotiators might well have provided apodictic proof of their desire to shorten the period of interruption of operations-but their failure to make the "offer" indicated, under the circumstances, cannot itself justify an inference that they were the responsible instigators of the work stoppages.) Realistically, therefore, it cannot be argued that the concerted action taken by the associated contractors was reasonably calculated to preserve their newly activated multiple-employer bargaining unit from disintegration, allegedly threatened by some partial strike action on the part of their employees. Even if the evidence could be said to establish a real partial strike by some employees, the resultant situation could hardly be held to have justified lockout action by the associated contractors, with respect to the rest of the men in their employ. Nothing in the record even suggests that any partial strike by allegedly "confused" employees, assumed at this point for the sake of argument, was expressly intended to "whipsaw" the associated employers or to destroy the Respondent Association's multiple-employer unit. Nor can it be said, reasonably, that such a result would be its necessary consequence. Secondarily, it is asserted that the Union's entire course of conduct reflected its leadership's intention to "destroy" the Respondent Association, at the inception of its initial effort to negotiate a multiple-employer trade agreement. When subjected to analysis on its merits, however, this contention must also be rejected. 1. It is said that the refusal of the labor organization to recognize the Association as the bargaining representative of the associated contractors constituted an attempt to destroy it. The record, however, will not sustain any factual conclusion that the Union ever refused to recognize the officers of the organization as spokesmen for the firms it represented. Collins conceded, as a witness, that the Union never took such a position. Its persistent reiteration of its "willingness " to negotiate in good faith with a Local Joint Industry Board made up of management representatives elected by the contractors bound under its 1956-57 agreements , as in previous years, certainly may be considered indicative of its desire to negotiate a standard form of agreement to be executed thereafter by each contractor, rather than a master agree- ment to be executed by the Association representatives in behalf of each and every one of the associated contractors. But the evidence will not support a finding that the Union's desire, in this connection , ever hardened into a demand. Prior to the first of March, its negotiating committee never appears to have displayed unwilling- 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ness to confer with management representatives who professed to function as Asso- ciation spokesmen . The ultimate form of the agreement to be executed as a result of the negotiations does not appear to have been placed in issue at the conference table; the record suggests rather, that a substantive impasse was reached before any real question as to the form of the agreement arose. Under the circumstances, the Union's conduct certainly cannot be characterized, properly, as a refusal to recognize the Association as the representative of the contractors. 2. It is suggested that the Union's reluctance to negotiate a master agreement with the Association derived from its desire to continue certain employment referral practices considered unlawful under the statute when pursued in connection with the dispatch of men to work for business enterprises large enough to affect com- merce. The Respondent Association, however, has made no effort to establish the Union's insistence upon hiring practices rendered illegal by the statute, and Business Manager Burroughs, as a witness, disclaimed any adherence to such practices by his organization. Even if it could be assumed, for the sake of argument, that the Union's current referral practice may be illegal under the amended Act, nothing in the record would support an inference that its willingness to negotiate a standard form of agreement, for individual contractors to execute, was calculated to enable it to avoid an unfair labor practice charge, or that the execution of indi- vidual agreements negotiated with a committee representative of many employers could even be expected, reasonably, to insulate the Union from some statutory liability. See Molinelli, Santoni & Freytes, S. en C., d/b/a Panaderia La Reguladora and Panaderia La Francesa; et al., 118 NLRB 1010, and the cases therein cited, as illustrative of the possibilities in this connection. The testimony of Business Mana- ger Burroughs indicates, also, that some of the individual employers privy to its standard form of agreement, in the past, have actually been involved in commerce as statutorily defined. 3. It is insisted, also, that the labor organization's "on-again-off-again" strike tactic represented an attempt to destroy the Respondent Association as a bargaining unit. But the available evidence clearly establishes that the announcement of the Union's business manager with respect to the "wish" of its membership to cease work after March 1 without an agreement was addressed to all of the contractors privy to the 1956-57 agreements scheduled to terminate on that date, without exception. And the subsequent declaration of the Union's negotiating committee that the membership of the organization would continue to work after the March 1 expiration date and continue to negotiate a new agreement, was sent to the Respondent Association's president and secretary in their representative capacity. Nothing in the record suggests that commitment thus made in behalf of the union membership was extended to a limited group of contractors. On its face, the Union's telegraphic communication clearly deserves characterization as a com- mitment extended to the associated contractors as a group. Under the circum- stances, therefore, no ready justification can be found for the characterization of the Union's course of conduct as an attempt to utilize "whipsaw" tactics within a bargaining unit composed of the contractors with Association representation. 4. It is suggested that the willingness of Business Manager Burroughs to promise a continuation of work to Respondents Hoffman, Buchanan, Lord, and Widmer like- wise represents an attempt to destroy the Respondent Association, in some un- specified way, as a viable employer representative. The persuasive thrust of this contention, however, surely deserves characterization as somewhat less than clear. These contractors had never authorized the Association to represent them in contract negotiation. The Association's representatives may have assumed on the basis of their past experience, of course, that Respondent Hoffman would ultimately execute a separate contract with the Union identical with the standard agreement or master agreement to be anticipated as a result of their negotiations with the organization. They may have assumed, also, that the other contractors designated would, pursuant to their usual practice, modify the wage rates, hours of work, and conditions of employment they were maintaining on contruction projects within the Union's territorial jurisdiction, to conform with those ultimately established in any agree- ment which the Association representatives might execute. And on the basis of these assumptions, they may have indulged themselves in a further assumption that Hoffman, Buchanan, Lord, and Widmer shared their interest, and that of the con- tractors they represented, in the terms of the collective bargain to be sought. The available evidence, however, will not support any factual finding that these assump- tions were made prior to the cessation of work with which we are now concerned; certainly it will not support a conclusion that they were articulated prior to that time. For the sake of argument, we may assume that the Association representatives did share the suggested assumptions ; we may even assume their soundness-pri- WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 965 marly, as an estimate of the ultimate action Hoffman, Buchanan , Lord, and Widmer would take, and, secondarily, as an estimate of the willingness of these Respondents to acknowledge a community of interest with the contractors represented directly in the negotiations. Such a presumed community of interest, however, would not be sufficient-under this Agency's current decisional doctrine-to effectuate a merger of the Respondents designated into the multiple-employer unit which the Respondent Association represented. See, for example, Colonial Cedar Company, Inc., 119 NLRB 1613; Highway Transport Association of Upstate New York, Inc., et al., 116 NLRB 1718, 1720-1721, and the cases therein cited. The promise which the Union's business manager extended to Hoffman, Buchanan, Lord, and Widmer, therefore-that their men would continue work-cannot be construed, realistically, as an attempt to negotiate independently with some of the members of a multiple- employer group. And since his announcement that the Union would continue to supply men for each firm-within its jurisdiction-merely involved a reiteration of the parallel assurance previously given with respect to the willingness of the Union's membership to continue work for the contractors with Association representation, it certainly cannot be considered indicative of an effort to destroy the newly activated multiple-employer group by some divisive tactic. 5. It is asserted that the Union's "last-minute'.' telegraphic communication con- stituted an attempt to destroy the employer's organization. No syllogistic rationale for his conclusion is suggested, however. Certainly, it is difficult to see how the Union's first attempt to correspond directly with Association officials, in their repre- sentative capacity, can reasonably be considered an effort to fragmentize the group. Earl Forsyth, the chairman of the Association's negotiating committee, testified that he did not consider the Union's failure to send him a telegram indicative of its adherence to a "divide and conquer" strategy. And the suggestion that the night letters were actually intended to solicit Collins and Arnett, separately, to continue operations has been rejected elsewhere in this report. 6. Lastly, it is suggested that the resumption of work by Respondents Buchanan, Lord, and Widmer represented the fruition of an attempt by the Union to cause the disintegration of the Association as the representative of the associated contractors. It has already been noted, however, that these Respondents recalled their employees upon their attorney's assurance that a resumption of work would be "acceptable" in the light of the relevant circumstances. When Buchanan, Lord, and Widmer requested their men to return, such action merely reflected their acceptance of the union business manager's unrevoked offer to continue supplying men. Since a similar unconditional offer to continue work had also been extended to the Re- spondent Association's president and secretary, for transmittal to the contractors they represented, characterization of the offer as a divisive union tactic would cer- tainly seem to be unwarranted. With respect to the entire argument just accorded detailed consideration-that the associated contractors were justified in their "decision" to proceed with the February 28 shutdown and layoffs because the Union's course of conduct reflected its explicit intention to "destroy" the Respondent Association as a collective-bargain- ing representative-the available evidence will, in any event, support a conclusion that rationalization, based upon afterthought, has colored the memory of the Respondent Association's witnesses, specifically with respect to the issue of motiva- tion. And I so find. The record with respect to the res gestae reactions of the Association representatives gives no indication whatever of their asserted fear that the Union's course of action would impair the ability of their organization to nego- tiate a multiple-employer agreement. The testimony of President Collins, previously noted, establishes, rather, that his immediate decision to take no action on the basis of the Union's telegraphic communication was merely based upon: (1) His opinion that the telegram's "late arrival" made any effective reaction impossible; (2) the failure of the Union's negotiating committee to volunteer an outline of the conditions under which work would continue-and, presumably, its failure to volunteer an indication of the duration of the union membership's commitment to continue work; and (3) his unwillingness to incur a "retroactive pay" obligation. And the testimony of Robert Hansen of Atlas Plumbing & Heating reveals that his decision to "dis- regard" the wire was also based, partly, upon the union committee's failure to specify the conditions under which the men would continue work and the length of time for which they would continue; as a witness , Hansen asserted that the absence of union proposals or commitments in these respects left him "confused" as to what the night letters meant. Hansen's testimony also indicates that the Union's telegram left him uncertain as to the organization's position with respect to the contract pro- posals of the associated contractors; specifically, he referred to the Union's failure 535828-60-vol. 125-62 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to retract its February 23 announcement that ``labor" would not accept the earlier contract proposals of the employers . The significance of this res gestae reaction by Hansen, as revelatory of the motivation behind his decision to "disregard" the Union's wire, will be discussed elsewhere in this report. When "Pat" Blair's opinion was solicited, he, too, expressed concern with the Union's apparent failure to promise a continuation of work for any fixed period. He suggested, also, that "any action, of any kind" in the Association's name, with respect to the announced willingness of the union membership to continue work, would have to be based upon a formal decision of the contractors represented by the Association, at a meeting of the organization . These considerations appear to have been the only ones expressly cited on February 28, to explain the contempo- raneous failure of the Association officials to acknowledge the night letters or sug- gest a suspension of shutdown preparations . Their evaluation as a possible source of justification for the indicated action of the Association's leadership, elsewhere found to be attributable to the associated contractors represented , must be our next concern. [4] Previously in this report, it has been noted that the "eleventh^hour . . . last- minute" character of the night letters did not really impair their significance as an indication of the union committee's determination that the union membership would continue to work. Additionally, however, the testimony of President Collins would seem to suggest a contention that the lateness of the Union's commitment relieved the associated contractors of any duty to suspend their preparations for a work stoppage. Due regard for the Board's obligation, under the statute, however, to "eliminate the causes of certain substantial obstructions to the free flow of com- merce" requires the rejection of this argument . The negotiating committee of the Union may well have been guilty of a mistake of judgment, in connection with its failure to announce the abandonment of its no contract-no work policy sooner; its failure to notify each of the associated contractors , separately, of its policy re- versal may also have been ill-advised . If such errors may be attributed to the Union's committee, however, they cannot excuse the failure of the Association repre- sentatives to take some action reasonably calculated to minimize or avoid the danger of industrial strife likely to jeopardize the public health , safety, or interest. See .Section 1 (b) of the Act, as amended. The Respondent Association has made no effort to cite a "legitimate interest" which its failure to take action served to defend , when its responsible officials allegedly decided to "disregard" the union committee's announcement because of its lateness. Common sense suggests that the efforts of the associated contractors to prepare for a cessation of work-after their receipt of the Union 's February 23 letter and their decision to "accept" the strike action forecast by the labor organiza- tion-had been costly, and that any decision to suspend such preparations and under- take a resumption of productive activity would also have been expensive. The expenses involved, however, clearly deserve characterization as a normal con- comitant of industrial strife; they exemplify , indeed, the sort of cost with which such strife routinely burdens commerce. Expenses normally to be anticipated as the result of a strike, whether associated with the employer's preparations for a cessation of work or his preparations for a resumption of productive activity , have never been held, previously, to constitute the type of "economic or operative problem" legally sufficient to justify an employer 's resort to a temporary lockout of employees. And no persuasive reason has been suggested for so classifying them in this case. (The cost burdens incidental to a resumption of work , regardless of their magnitude, would have been imposed upon the contractors , of course, whether their effort to resume operations began immediately after the receipt of the union committee's announcement that the union membership would continue work or upon the termina- tion of a lengthy work stoppage. Since the expenses involved would have been a necessary concomitant of any decision-forced or voluntary-to suspend operations and resume them later, they cannot be said to involve "unusual " or "extreme" economic hardship.) [5] The testimony of President Collins also purports to reveal his concern , and that of "Pat" Blair as well, with respect to the Union's failure to indicate whether its members would continue work for any definite period. On the basis of their testi- mony that the union committee's failure to specify the duration of its commitment was noted, their apparent fear that the Union might strike at a later date, in the absence of a new agreement, may be inferred. And there is a suggestion advanced, in the Respondent Association's behalf, that its officials did, in fact, decide to "dis- WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC . 967 regard" the Union's offer to continue work in order to defend the contractors repre- sented by the organization against a possibility that the union membership would initiate a work stoppage at some subsequent date. An analysis of the situation in its total context, however, will suggest the propriety of a conclusion that the alleged fears of the Association officials with respect to the possibility of a subsequent work stoppage-if such fears were, in fact, shared-were unjustified, and the propriety of a further conclusion that the mere possibility of such an eventuality, assumed for the sake of argument, could not, in any event, render their lockout action defensive and privileged. With respect to the evidentiary justification, if any, for the asserted fears of the Association representatives we may note, at the outset, the reference earlier in this report to the Union's telegraphic announcement that its membership would "con- tinue to work" and "continue to negotiate" for a new agreement. Superficially, at least, this commitment would certainly seem to reflect a policy determination by the labor organization that no work stoppage would be initiated by employees prior to a resumption of negotiations; it may legitimately be taken to imply, also, that no strike action would be initiated prior to the development of a new impasse. Nothing in the union committee's night letters, certainly, was reasonably calculated to convey a threat of possible strike action later. May the employer recipients of the night letters be considered justified, neverthe- less, in their alleged fear that a strike might eventuate if an immediate agreement could not be reached? The available evidence, in my opinion, will support a con- clusion that-if such a fear was, in fact, shared by the Association's officialdom- no solid justification for it existed. The testimony of Business Manager Burroughs establishes, without dispute, that no union-sponsored strike has been called within the territorial jurisdiction of the organization for at least 7 years. (Its record in the collective-bargaining field prior to 1950, with respect to which Burroughs could not testify, has not been explored.) And the membership of the organization appears to have worked for about 6 weeks after the termination date of its 1953-54 agreements, until new standard agreements were negotiated and executed by the contractors; Burroughs so testified, without contradiction. In the absence of any history con- vincingly indicative of a disposition on the part of the union membership to "hit the bricks" in the course of a labor dispute, and in view of the definitive telegraphic withdrawal of the Union's earlier strike threats, previously found, the leadership of the Respondent Association cannot, in my opinion, point to any objective justifica- tion for their asserted fear that a strike might occur. Compare American Brake Shoe Company, Ramapo Ajax Division v. N.L.R.B., supra. In the language of the court, therein, I find nothing in the past conduct of the Union in this case, the nature of its demands, or the failure of its negotiating committee to volunteer a written assur- ance with respect to the duration of the union membership's willingness to continue work, reasonably sufficient to justify the professed belief of the Association repre- sentatives that a real strike threat existed.5 Any doubt the Association's leadership may have shared with respect to the possibilities of a subsequent work stoppage certainly could have been resolved by direct inquiry. And an interim agreement on the Union's part to refrain from the initiation of a work stoppage for some definite period, or until the achievement of a new agreement, could have been solicited. These possibilities do not even appear to have been considered. In the light of the available evidence, I am persuaded that the asserted fears of the Association leaders with respect to the possibility of a delayed strike some time after the termination of the 1956-57 agreements were not objectively justified. (On the basis of an analysis to be set forth at length elsewhere in this report, I am satisfied, indeed, that the concern which President Collins, Arnett, and Blair ex- pressed on February 1, with respect to the Union's failure to fix the duration of its membership's willingness to continue work, actually reflects a rationalization which- regardless of its sincerity-tends to obscure the "true purpose" behind their decision 8 The testimonial record reveals a suggestion that a strike previously initiated by the Union's Eugene, Oregon, sister local was a factor in the asserted anticipation of the Association representatives. Upon objection, however, an extensive inquiry into the cir- cumstantial background of the work stoppage in question was foreclosed as collateral. This determination is reaffirmed . The conduct attributable to another labor organization cannot, realistically, be held to justify alleged fears with respect to the action which the Union herein might take. If the situation in Eugene, indeed, can he said to have had any relevancy and materiality whatsoever, its significance as a warning sign would pre- sumably have been balanced by the behavior of the Union's Portland sister local ; there, negotiations were proceeding amicably, and no work stoppage of plumbers and pipefitters had occurred for 45 years. 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to disregard the union committee's wire. Their actual objective, manifested in the testimonial record, will be discussed hereinafter.) Even if such a professed fear could be considered warranted, its limited scope, I find, would preclude its charac- terization as sufficient to render lockout action defensive and privileged. Discrimi- nation by an employer with respect to hire or employment tenure, merely because employees have expressly reserved their right in the future to engage in strike action or other concerted activity protected under Section 7 of the statute, has long been considered an unfair labor practice. Cf. Southern Fruit Distributors, Inc., 109 NLRB 376, 390-391. The Board has observed that a contrary determination would, indeed, subvert the principles of the Act and render the guarantees therein meaning- less. Consistently, in cases involving lockout action the Agency has held that an employer's alleged fears with respect to the mere possibility of a strike cannot justify a suspension of operations under any circumstances; the economic or operative problems of an "unusual" character which the employer may anticipate as the result of a union-initiated work stoppage will not even be considered relevant to any deter- mination with respect to the legality of his conduct, in the absence of evidence suffi- cient to warrant a conclusion that his action was taken to counter a real strike threat. American Brake Shoe Company, Ramapo Ajax Division, 116 NLRB 826, 831. Thus, if an assumption could be made, for the sake of argument, that the Association representatives really did fear the possibility of a delayed strike, and that their decision not to interfere with the February 28 layoffs was motivated by that fear, the decisional doctrine indicated would require a rejection of their contention that lockout action ought to be considered permissible. (The refusal of the Seventh Circuit Court of Appeals to enforce the Board's order, in the cited case, does not appear to have been based upon a rejection of the decisional doctrine noted; rather, it appears to have been based upon the court's factual conclusion that the employer's fear was real, and that the relevant circumstances "reasonably justified" his asserted fear that a real strike threat had been made.) By way of summation then: Upon the entire record, I have already concluded that the decision of President Collins and Secretary Arnett to "disregard" the announced desire of the union membership to continue work, and to refrain from any suggestion that the shutdown preparations then under way ought to be suspended, did not really rest upon their asserted fears with respect to the possibility of a subsequent strike; I have likewise concluded that their professed fears, presumed genuine for the purpose of discussion, were not realistically warranted. It is now concluded that they were, at the very most, confronted with nothing more than the speculative "possibility" of a later union- sponsored work stoppage, and that this Agency, under established decisional doctrine, should not consider any claim that their course of conduct was defensive and privileged, in the absence of evidence sufficient to show the existence of a real strike threat. Even if the record could be said to justify a conclusion that the associated con- tractors did lay off their employees and initiate work stoppages, in fact, to avoid the mere possibility of a subsequent strike by the union membership-and that layoffs thus motivated may be justified in law-the interest of the associated contractors in the avoidance of specific losses or operative disruption, in this case, cannot be re- garded as paramount in importance to the employee rights infringed by their refusal to furnish work. The available evidence will not support a conclusion that the action taken by the employers was motivated by a desire to avoid "unusual" operative problems or "extreme" economic losses, over and beyond the ordinary loss of business or custom- ers which normally attends any strike. Compare Link-Belt Company (Dodge Plant), et al., supra; Hobbs, Wall and Company, supra; Duluth Bottling Association, et al., supra; International Shoe Company, supra; Betts Cadillac Olds, Inc., et al., supra. The cost burdens incidental to the preparatory work which some of the contractors would have had to undertake immediately, in order to resume productive activity, have already been noted as a normal concomitant of industrial strife. (At some construc- tion projects, preparations for a shutdown were actually completed within 1 day, and the available evidence indicates that the contractors, in some instances at least, could have achieved a posture of readiness to resume productive work within a lesser time span.) And the testimony proffered in the Respondent Association's behalf, indeed, expressly suggests only two other "hardships" which the contractors anticipated; Collins and several other contractors appear to have been reluctant to face the possibility of a retroactive pay obligation, and there is an indication that some contractors may have been motivated by subjective, unexpressed fears that a renewed strike threat by the union membership, at some later date, would alienate the general contractors and builders dependent upon their work as plumbing and WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 969 heating subcontractors. As the Board's American Brake Shoe decision points out, however: The Respondent's fear that a strike would delay deliveries and result. in loss of customers represented no more than a fear of the ordinary economic hardship occasioned by a strike, which the Board and the Courts have held does not privilege an employer to infringe upon the rights of his employees. In support of this observation, numerous cases were cited. N.L.R.B. v. National Broadcasting Company, Inc., et al., 150 F. 2d 895, 900 (C.A. 2); N.L.R.B. v. Gluck Brewing Co., 144 F. 2d 847 (C.A. 8); N.L.R.B. v. Peter Cailler Kohler Swiss Chocolates Company, Inc., 130 F. 2d 503, 506 (C.A. 2); N.L.R.B. v. Hudson Motor Car Company, 128 F. 2d 528 (C.A. 6); The Atlas Underwear Co. v. N.L.R.B., 116 F. 2d 1020 (C.A. 6); N.L.R.B. v. Star Publishing Co., 97 F. 2d 465 (C.A. 9); Lakeshore Electric Mfg. Co., 67 NLRB 804. When the Seventh Circuit Court of Appeals refused to acknowledge the Board's American Brake Shoe pronouncement as determinative, it did not challenge the principle noted; it based its decision upon its evaluation of the evidence. Specifically, it found that: There is substantial evidence to support the conclusion that there would indeed be an irreparable loss directly attributable to the work then in process, and that permanent loss of business would result. No such evidence has been adduced in this case. There is nothing in the record, at least, to show that any of the associated contractors-with the exception of Earl Forsyth-were then engaged upon construction projects with specific completion dates, which the general contractor involved would be unable to meet specifically because of a plumbers and pipefitters work stoppage. Forsyth appears to have been the only plumbing contractor, indeed, functioning subject to a penalty clause which his general contractor would be likely to invoke in the event of a prolonged cessa- tion of work. None of the associated contractors was able to cite prior strike ex- perience reasonably calculated to provide them with a reliable indication of the effect which a failure to work continuously would have upon their customer rela- tions. And there is no indication whatever that any general contractor or builder has ever threatened one of the associated plumbing and heating contractors with a damage claim, or a permanent withdrawal of business if a subsequent work stoppage developed. Thus, if any of the associated contractors actually feared the prospect of a deterioration of their business relationship with some specific general con- tractors or builders, in the event of a possible strike at some later date, their fears warrant characterization as entirely subjective. (The owner of one service shop- Beaver Plumbing and Heating Company-did testify that a sudden work stoppage initiated by employees would prevent him from taking emergency service calls, and that it might prevent him from completing work started on the previous day, thus leaving his firm's customers without heat or water. His testimony establishes, how- ever, that the employees of his firm worked overtime voluntarily prior to February 28 in order to complete all of their pending service repair assignments. The record, in this respect, does not suggest employee irresponsibility. Elsewhere in this report, also, the absence of any evidence sufficient to indicate the reasonable likelihood of sudden strike action against the associated contractors at a later date has already been noted. Under the circumstances, the clearly theoretical possibility that an employee-initiated work stoppage might develop so suddenly as to prevent the completion of pending service assignments by struck shops cannot suffice to render the action of the associated contractors, as a group, privileged.) Upon the entire record, however, I am satisfied that the willingness of some con- tractors to testify with respect to their alleged fears in this respect rests upon after- thought; one of them, Robert Hansen, conceded in direct examination that his concern in this respect did not significantly influence his decision to proceed with the February 28 shutdown and layoff. Any conceivable argument that the action of the associated contractors was predicated upon a reasonably justified fear, attrib- utable to all of them, that determinable business losses would be suffered in the event of a possible future strike-which the Respondent Association's counsel, indeed, had not touched upon in his brief-must, therefore, be rejected. [6] With respect to the testimonial suggestion that Collins and Hessen, inter alia, were reluctant to treat the union committee's announcement as sincere because of its failure to outline the terms and conditions under which the membership of the organization would continue work, certain additional observations would seem to be warranted. 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the course of their testimony, Collins and Hansen asserted, in substance, that the committee's silence left the terms and conditions under which work would continue uncertain, and that this uncertainty contributed to their reluctance to suspend shutdown preparations already initiated. Essentially, the assertions of each witness, in this connection, seem to rest upon a basic assumption that their uncertainty with respect to the terms and conditions under which work would con- tinue justified their decision to cease operations. In the light of the available evidence, however, I find this viewpoint unpersuasive. It may be assumed of course-for the sake of argument-that genuine uncertainty on the part of an employer, as to the terms and conditions under which his employees would continue work, might justify his decision to cease furnishing employment. I find it difficult, nevertheless, to conceive of a situation in which such uncertainty, on the part of an employer, could be said reasonably to create a genuine dilemma for him. In this case, certainly, Collins and the other contractors were free to conclude, rationally, that the Union's failure to suggest the terms and conditions under which ,the men would continue work warranted an inference that they would be willing to do so on the basis of the terms established pursuant to the terminated agreements. Under cross-examination, the Association's president conceded as much. (Blair's testimony, in this connection, suggests his awareness-on the basis of some "loose conversation" which unspecified Association officials had allegedly heard-that the Union was willing to continue the terminated contracts on -a "day to day" basis, pending the completion of the negotiations then in progress. Since this Agency cannot, however, find that Collins or any other Association representa- tive was actually aware of the Union's rumored willingness to negotiate such an interim arrangement , a conclusion that any of them knew about the Union's willing- ness to supply men under terms and conditions previously established would not be warranted.) If certain circumstances-not elaborated in the testimonial record- were, in fact, considered sufficient to destroy the basis for the inference suggested, the contractors certainly could have sought a clarification of the Union's position. The record, however, indicates that they made no effort to do so. Blair, for example, made no attempt to verify the Union's rumored willingness to negotiate an interim agreement, and no effort was ever made to determine the conditions under which the union membership would continue work. (The testimony of the Association's consultant indicates an assumption by the Association representatives that "if the union was anxious to negotiate any conditions at all in relation to this over-all picture" its negotiating committee would have -requested the Federal conciliation commissioner to arrange a conference.) And Collins-conceding the interest of the associated contractors in "running" their shops provided they could determine the conditions under which the shops would run-could recall no effort made to determine the conditions under which operations would be continued or resumed. In the light of the relevant circumstances, the apparent assumption of the associated contractors that the union was obligated, somehow, to take the initiative and to make a positive suggestion, in conjunction with its offer to continue supplying men, with respect to the terms under which work would continue-and that its failure to do so justified a refusal on the part of the contractors to cease preparations for a shut- down--deserves rejection. N.L.R.B. v. Montgomery Ward & Co., 133 F. 2d 676, 686 (C.A. 9); N.L.R.B. v. Reed and Prince Mfg. Co., 118 F. 2d 874, 885 (C.A. 1). Recognition of an employer's right to insist that a labor organization come forward, initially, with suggestions for the adjustment of any dispute-without the imposition of a requirement, even, that the employer state the issues to be settled or the nature of the assurances sought-would surely be more likely to "discombobulate" the parties privy to the negotiations than to promote the composition of their differences. Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 464, Mr. Justice Frankfurter in dissent. Additionally-of course-the right of the associated contractors to set, unilaterally, the terms and conditions under which employment would be offered after the 1956- 57 agreements expired could not have been disputed. (No consideration need be given, at this time, to the question of whether the freedom of action reserved for the contractors, in this connection, extended so far as to permit the establishment of terms and conditions more or less favorable than those embodied in their last con- tract offer; it is sufficient to note that the firms represented in the negotiations had the power, unilaterally, to resolve any uncertainty as to the terms under which work would continue.) Their present insistence, therefore, that the Union's failure to come forward with an interim proposal left them suspended in limbo must be rejected. The Union's failure to state the terms and conditions under which work would continue thus could not, in the very nature of things, create sufficient uncertainty to justify a refusal on the part of the contractors to furnish work. WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 971 17] The fears of Collins with respect to the possibility that any final contract settle- ment might give rise to a retroactive pay obligation, likewise, cannot be said to have justified a decision on the part of the associated contractors to proceed with a sus- pension of operations. Such a contingency has never been considered an "unusual" or "extreme" economic hardship for an employer. And Collins, who cited it as one factor in his personal determination to disregard the Union's wire, made no attempt to show why it ought to be considered an economic or operative hardship sufficient to justify "lockout" action. I find no reason to so classify it. At the outset, it should be noted that, if the fears of Collins in this connection did influence his personal decision, a conclusion would clearly be warranted that his motivation, specifically, was improper. A shutdown to avoid the accumulation of a contingent retroactive pay obligation would certainly be reasonably calculated to interfere with, restrain, and coerce employees in the exercise of their right to bargain collectively. Since the shutdown would necessarily eliminate their employment op- portunities, such employer action would destroy the basis of their retroactive pay demand. Their right to press such claims in collective bargaining-clearly a right statutorily guaranteed-would, of course, be thereby aborted. And the employer would have achieved his goal, the avoidance of retroactive pay liability, by discrimi- nation with respect to the employment tenure of the workers involved, reasonably calculated to discourage their support of such union demands. The impropriety of any suspension of operations thus motivated would seem, therefore, to be patent. In the light of the available evidence, it has thus far been assumed, for the sake of argument, that Collins and possibly some of the other associated employers were specifically motivated-partially, at least-by a desire to forestall any retroactive pay obligation. In the absence of a reliable indication however, that any similar motivation may be attributed legitimately to the associated contractors as a group, its acknowledgment by Collins cannot sustain any conclusion with respect to the liability of the Respondent Association, the Respondent Members, and the other contractors represented by the employer's organization, under the statute. Elsewhere in this report, the actual motivation attributable, without distinction, to Collins and the other associated contractors-in the light of the relevant circumstances-will be given detailed consideration. (b) The General Counsel's case Analysis, thus far, has revealed the arguments proffered by the Association, in support of its contention with respect to the defensive character of the lockouts found herein, to be deficient in evidential support or based upon afterthought. The testimonial record, nevertheless, does indicate persuasively that the failure or re- fusal of the associated contractors to furnish work after February 28 was rationally motivated. The organization's officialdom has, in fact, provided clear evidence of the real rationale behind its decision to refrain from a suspension of the February 28 shutdown and layoffs. To a consideration of the "true" motivation attributable to the associated employers, therefore, this report must now turn. At the outset, it may be noted that many of them-with no actual awareness of the Union's telegraphic renunciation of its earlier no contract-no work policy-pre- sumably suspended operations and laid off their employees under the impression that they had "accepted" a strike. It has already been found, however, that the union committee's night letters reflected that organization's relinquishment of any initiative with respect to the effectuation of a work stoppage-and that the failure of Collins and Arnett to advise most of the other contractors with Association repre- sentation that the Union had announced a policy reversal necessarily constituted a refusal, vicariously attributable to each contractor represented, to take advantage of the "last clear chance" presented to avoid a cessation of operations. And else- where in this report it has been found that the associated contractors must, as a result, bear the final responsibility for initiating the work stoppages with which this case is concerned. The motivation which influenced the unanimous February 26 decision of these contractors to "accept" the strike as a group deserves characterization, also, as the operative factor in their subsequent determination to proceed with the February 28 shutdown and layoff. (In general, sound logic would seem to indicate the propriety of an inference as to the continued existence of any given human objective, upon proof of its existence or manifestation at an earlier date. Wigmore on Evidence, Third Edition, Section 437, 2530. 1 have drawn the inference indicated.) The testimonial record does reveal a sustained effort by the General Counsel to elicit an 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admission from various contractors that the Association's February 26 decision was, itself, a decision to "close up the shops" and lock out the union members in the employ of the associated firms because of the membership's earlier rejection of the February 21 "package deal" proffered for their consideration. No such admission, however, was elicited; indeed, upon the entire record, I find it difficult to believe that the contractors present at the February 26 conclave would have had occasion to reach a decision with respect to any suspension of operations, in view of the union membership's previously announced determination not to work after the expiration of the 1956-57 agreements in any event. The avialable evidence, however, will certainly support a conclusion that the decision of the contractors to "accept" the Union's anticipated strike action was a group decision based upon their unwillingness to grant the Union's demands, and that employer solidarity in the face of the prospective work stoppages was a desideratum of those present. The motivation be- hind their unanimous decision to suffer these work stoppages together cannot reason- ably be considered dissipated as a result of the Union's decision to refrain from strike action. Common sense suggests that it must still have been a factor in the decision of contractors apprised of the Union's wire to refrain from action likely to disrupt the unity of purpose previously achieved by the associated employers. And I find that it was. Reference has already been made to Hansen's testimony, for ex- ample, that his February 28 decision to "disregard" the Union's wire was based, in part, upon the labor organization's failure to retract its announced determination not to "go along" with the contract proposals of the associated contractors; this testimony will clearly support a conclusion that Hansen, a member of the Associa- tion's negotiating committee, reached his February 28 decision on the basis of the considerations found herein to have motivated the unanimous February 26 decision of the employer's group. A similar conclusion is warranted, I find, with respect to the Association's presi- dent; when questioned as to what his employees were told when they were paid off, and the motivation behind his action, Collins testified credibly that: A. I told them, it is our understanding you are not going to be here, you are not going to work. Q. Isn't it a fact, that you told your men that it looked like there would be no work until you reached an agreement? A. There would be no more work until we met their terms which would, in turn, be an agreement, but at that time we were not willing to meet their terms and demands. Q. At this time you were not particularly anxious to keep your shop open, were you, Mr. Collins? A. Oh, yes. Q. Did you discuss that with the other members of the Association? A. We discussed it in Corvallis, but we were not anxious to keep it open under the demands in front of us. Q. Even after you got the telegram from the union saying they would con- tinue working? A. The telegram made no change in the union's demands... . Subsequently, Collins also testified that he did not "open" his business on March 4, 1957, because he had no union agreement, and because no settlement had been reached with respect to the contract demands he considered excessive; he conceded his "assumption" that the failure of the other contractors to open was similarly moti- vated. Insisting that it was not the "intention" of he Respondent Association to force the Union to accept the terms proffered in behalf of the associated contractors, Collins testified, credibly, that the employers represented in the negotiations never- theless did not wish to meet the Union's demands as they stood; he described the objective of the negotiators, again, as follows: "We wanted to continue negotiating and get this wage demand trimmed down to where it was reasonable." The sig- nificance of this comment would seem to be patent. The Respondent Association's brief also clearly summarizes the substantive moti- vation attributable to the associated contractors. It includes a statement, for example, that: Employers finally resolved themselves to accept the strike as inevitable when they were economically unable to meet the Union's 60-cent per hour demands . . . . Once the decision was made not to capitulate to Union demands, these preparations [for a shutdown] were seriously commenced. . . Whatever lockout may have occurred was from start to finish motivated by the reasonable desire to defend against the threatened strike . . . . We may WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 973 search and research the record, but the only employer motivation we find is its desire to accept and take the March 1 strike rather than accede to demands they considered economically ruinous. This motivation it patently lawful. [Emphasis supplied.] Essentially, this argument reflects a contention that the associated contractors were motivated by their resistance to the Union's economic demands. Otherwise stated, their actual February 26 decision to "accept " strike action by the employees as a united group, and the February 28 decision attributable to them as a matter of law- 4o proceed with a shutdown in the face of the reported willingness of the union membership to continue work-were both motivated by their desire to win for themselves "more desirable" terms in the contract under negotiation. I have so found. The course of action attributable to the associated contractors thus presents for the consideration of this Agency, in the final analysis, a question as to the legality of a suspension of operations initiated by employers for the purpose of asserting economic pressure upon a union's bargaining position. And the Respondent Asso- ciation's contention that the Board need not consider this "rather vexing problem" in the present case, American Brake Shoe Company (Ramapo Ajax Division) v. N.L.R.B., 244 F. 2d 489 (C.A. 7), must be rejected. In the light of extensive research, I am convinced that due regard for the declared objectives of the Act, as amended, will preclude any determination by this Agency that an employer's suspension of operations, temporarily, for the purpose of exerting economic pressure on a union in the course of collective -bargaining negotiations, constitutes privileged conduct. As the Respondent Association's able counsel has observed, the legality of a temporary employer lockout as an economic weapon, allegedly corollary to the statutory right of employees to strike, has never been decided by our highest judicial authority. In the recent Truck Drivers case, previously noted, the Supreme Court expressly found it unnecessary to determine: whether, as a general proposition , the employer lockout is the corollary of the employees' statutory right to strike. Several court of appeals decisions have been cited by counsel as persuasive . Morand Brothers Beverage Co. v. N.L.R.B., supra; Albert Leonard, et al., d/b/a Davis Furniture Co., et al. v. N.L.R.B., supra; N.L.R.B. v. Continental Baking Company, et al., supra. These decisions, however, are not entirely apposite. In each case, the court's determination that a particular lockout was lawful ultimately required nothing more than a narrow decision with respect to its legality as a countermeasure in the face of actual or threatened strike action by a union , reasonably calculated to impair the legitimate interest of a group of employers in bargaining as a single unit. In the Ninth Circuit's first Davis Furniture decision, the various references to "strikes and lockouts" in the statute are discussed at length; the court's analysis clearly suggests its opinion that the intention of Congress to equate strikes and lock- outs for each statutory purpose may legitimately be inferred . With specific reference to the question now under consideration , for example, the court observed-at 197 F. 2d 435, 441, particularly-that: From the above expressions in the Statute and the linking of the terms "strike" and "lockout," it is arguable that Congress has recognized strikes and lockouts as correlative powers to be employed by the adversaries in collective bargaining when an impasse in negotiations is reached . [Emphasis supplied.] After due consideration , however, the court remanded the case to the Board for a specific determination as to the legality of a temporary lockout not effectuated as a mere reprisal for a union-sponsored whipsaw strike. Upon a petition of the respondent employers for court review of the order issued pursuant to the remand , the Ninth Circuit did reiterate its general views with respect to the "arguable" significance of the various references to "strikes " and "lockouts" in the Act, as amended , 205 F. 2d 335. It did not, however, set aside the Board's order on the broad ground that Congress had recognized strikes and lockouts as correlative powers to be employed by collective -bargaining adversaries when an impasse in negotiations is reached . The court's holding, instead , was articulated in the following terms: It is apparent that the power of a union to initiate a strike which calls out all the employees in an entire or substantial part of an industry is no more than equalled by the power of the employers to lock out temporarily all or a sub- stantial part of such employees . Here, where the economic contest is between 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eleven Dealers in the furniture industry and all its employees in a single union, the right of the employers to lock out temporarily all the employees is no more than equal to the right of the union of all the employees to call out all the employees of one after another of the Dealers in the whipsawing manner above described. We do not hold that under the Taft-Hartley Act the right to lockout tempo- rarily may be used in all situations existing between employers and employees. The area of its use under that Act is a matter not yet determined by the Supreme Court . . . we agree with the position taken by the Board in the former case involving the same facts that the use of such a temporary lockout as here made by the Dealers to meet the announced whipsawing strikes by the Union does not violate either Section 8(a)(3) or Section 8(a) (5) of the Taft-Hartley Act. [Emphasis supplied.] The initial decision of the Seventh Circuit Court of Appeals in the Morand case also reflects, essentially, a determination that a group of employers associated for the purpose of collective bargaining could "properly and realistically" view a strike against one of their number as a strike against the entire association membership, aimed at compelling all of them ultimately to accept the contract terms demanded by the union involved; the court went on to hold, specifically , that the associated employers had a right to counter the strike's effectiveness by laying off , suspending, or locking out employees affiliated with the union, as to whom no collective- bargaining agreement was then in effect. It is true, of course , as the Respondent Association's counsel points out, that the court did base its holding upon a general- ized determination that: . . . the lockout should be recognized for what it actually is, i.e., the employer's means of exerting economic pressure upon the Union, a corollary of the union's right to strike. Consequently, once petitioners had exhausted the possibilities of good faith collective bargaining with the Union through their Associations, any or all of them were free to exercise their right to lock out their salesmen without waiting for a strike, just as the Union was free to call a strike against any or all of them. Upon the court's decision to remand the case , however, a Board majority voiced its disagreement with this general concept. Morand Brothers Beverage Co., 99 NLRB 1448, 1461-1466. Whether or not this Agency pronouncement was within its competence, under the terms of the Seventh Circuit 's remand, Morand Brothers Beverage Co. v. N.L.R.B., 204 F. 2d 529, 532-533, it clearly represents the Board's considered judgment and, as such , binds its trial examiners in the absence of any Board or Supreme Court reversal . Novak Logging Company, 119 NLRB 1573; Insurance Agents' International Union, AFL-CIO ( The Prudential Insurance Com- pany of America), 119 NLRB 768. I so find. Since its second Morand decision , this Agency has not considered the legality of the temporary employer lockout, utilized as a pressure tactic in a collective-bargaining context. Its Buffalo Linen Supply decision, previously noted, was limited expressly, to a determination consistent with the ultimate decision of the Ninth Circuit Court of Appeals in the Davis Furniture case that: A strike by employees against one employer-member of a multi-employer bargaining unit constitutes a threat of strike action against the other employers, which threat per se, constitutes the type of economic or operative problem at the plants of the nonstruck employers which legally justifies their resort to a temporary lockout of employees. The Board found it unnecessary , however, to determine broadly the legality of the temporary employer lockout as a corollary of the employees ' statutory right to strike. Thereafter, the Board's American Brake Shoe decision was expressly bottomed upon a determination that an employer 's curtailment of operations and employee layoffs may not be considered defensive and privileged, under established decisional doctrine, in the absence of evidence sufficient to indicate his awareness of a real strike threat, and in the absence of evidence sufficient to establish that, as a result of his curtailment and layoffs, the employer would be enabled to avoid unusual operative problems or economic losses, over and beyond the ordinary loss of business or customers normally attendant upon a strike. After due consideration , therefore, I am constrained to find the action of the Respondent Association and the associated contractors subject to administrative WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 975 proscription. My conclusion, of course, rests upon the major premise persuasively articulated by this Agency in the second Morand decision. In that decision, previ- ously noted, a Board majority expressly observed that: a temporary layoff ( i.e., lockout) of the [employees ] would have been unlawful , even if it were true that its purpose was to bring temporary economic pressure on the Union and its members solely in order to break the bargaining impasse. Acceptance of this premise-as a principle of administrative adjudication reasonably calculated to effectuate the statutory objectives , by the achievement of a reasonable balance between the guaranteed right of employees to strike and the reciprocal right of employers to act for the avoidance of resultant economic hardship-does not require the acceptance of any general proposition that the right of an employer to lock out employees temporarily may not, under any circumstances , be equated with the right of a union to strike. No such contention has been advanced by the General Counsel in this case. In the light of my factual conclusion , however, that the Respondent Association has actually asserted the right of the contractors it represents to lock out their employees, concertedly , for the purpose of breaking a deadlock in negotiations and achieving certain collective -bargaining goals, the legal conclusions reflected in this Intermediate Report must, at the very least, derive from a determination that this Agency 's obliga- tion to promote the statutory objectives would require it to reject any contention that an employer is privileged to suspend operations temporarily and lay off employees for the specific purpose stated. In this Agency's second Morand decision , for example, reference is made to the well-established doctrine that no distinction between a discharge and a temporary layoff may be made under Section 8(a)(1) or Section 8(a)(3) of the statute; broad statutory language is said to proscribe both permanent and temporary separa- tions from employment directed against protected concerted activity . And the Board points out its lack of freedom to limit the scope of these statutory proscrip- tions-"so as to sanction lockouts which are designed to break a bargaining impasse by bringing economic pressure on employees who have engaged in collective bargain- ing"-unless other sections of the statute clearly require it. It finds no such require- ment, specifically , in Section 1 or Section 8(d)(4) of the Act, as amended.6 With reference to a contention that the lockout of certain employees to gain bargaining concessions may not be considered indicative of a desire , on the part of the single employer or group of employers involved, to interfere with union activity or membership-and that such action , therefore , cannot be said to provide "affirma- tive" proof of unlawful intent , the Board has this to say: However, clearly , the resistance by a union , in the interest of the group, to the employer's demands , in the course of good faith bargaining , [ and, of course, its persistence in the presentation of the demands articulated by the employees] is a form of concerted activity for the mutual aid and protection of the group, as well as the exercise of the right to bargain collectively , and a mass layoff of union members, depriving them of their means of livelihood , in order to overcome such resistance for persistence], necessarily is designed to interfere with such concerted activity and collective bargaining, and to discourage mem- bership in the union which by its opposition to the employer's demands For its pressure for the acceptance of those advanced by its own negotiators] has provoked the layoffs . [Emphasis supplied.] Since a reference has been made , elsewhere in this report , to the Respondent Asso- ciation's insistence that no "affirmative " or "independent" evidence of unlawful motivation has been adduced in this case , the material bracketed in the above quotation has been added , specifically , to indicate the relevancy of the Board's ob- servations in the present context. Common sense will suggest-perhaps, even , compel-the conclusion that evidence sufficient to establish an employer 's resort to lockout action as a collective -bargaining pressure tactic will not , also, establish "independently" or "affirmatively" the presence of an antiunion motivation , in the ordinary sense. Such a motivation , however, may certainly be imputed to the employer involved if an analysis of the situation would justify a conclusion that the impairment of statutorily guaranteed rights would be a natural and reasonably foreseeable consequence of his conduct. 9 For a detailed exposition of the Board 's views with respect to the significance of the sections indicated , in the context of a case similar to the present one, see the discussion at pages 1463-1464 in the second Moranul decision , now under consideration. 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record, and in the light of established decisional doctrine, I am satisfied that the "reasonably foreseeable consequence " of the course of conduct here- in attributed to the Respondent Association and the various contractors represented by that organization was an infringement of the right of their employees to assist their labor organization , to bargain collectively through representatives of their own free choice, and to engage in other concerted activities for the purposes of a collective bargain. American Brake Shoe Company, Ramapo Ajax Division, 116 NLRB 820, 826; Radio Officers' Union, etc. (A. H. Bull Steamship Company ) v. N.L.R.B., supra; Republic Aviation Corporation v. N.L.R.B., supra. Under the circumstances, the imputation of an unlawful intent to the associated contractors-despite the absence of affirmative proof with respect to its presence-would seem to be entirely proper. Cf. F. W. Woolworth Company v. N.L.R. B., 121 F. 2d 658, 660 (C.A. 2); Hartsell Mills Company v. N.L.R.B., 111 F. 2d 291, 293 (C.A. 4). And I so find. The effectuation of a balance between the legitimate interests of employees and employers whenever they conflict , to effectuate the national labor policy , has been described by the Supreme Court as a "difficult and delicate responsibility" committed to the Board primarily, subject to limited judicial review. In the discharge of its functions in this connection, the Agency has recognized that employers may not, properly, be stripped of all power to cope with the power of unions to strike. It has pointed out, however, that the denial to employers of their supposed common- law right to use the lockout as a means of enforcing bargaining demands does not leave them helpless. (For a discussion of the several alternative courses of action open to employers , in the event of a deadlock in negotiations , see the discussion at page 1465 in the Morand decision. Cf. Betts Cadillac Olds, Inc., 96 NLRB 268, 285, footnote 8, and the cases therein cited.) They retain, obviously, the right to utilize a substantial array of techniques and devices calculated to facilitate the achievement of "desirable" or workable employment terms, embodied in negotiated agreements. In addition to the courses of action enumerated by the Board , certain techniques associated with mature , responsible collective bargaining may also be available as alternatives to "lockout" action, even in the face of a strike threat. The development of an impasse in negotiations-after the expiration of a trade agreement-need not lead, inevitably, to economic warfare. The employers involved may conceivably be enabled thereby to seek-with some hope of success-agreement on a procedure reasonably calculated to forestall the economic losses naturally associated with indus- trial strife. Among other things , the possibility of an interim agreement to continue work under the terms of an expired contract , pending the execution of a new one, may be noted. The intervention of a mediator may be suggested and his services intensively utilized to facilitate the composition of differences without resort to trial by battle. And, in the final eventuality, a resort to arbitration may be suggested and accepted . (In this case, the ultimate willingness of the associated contractors to rely upon arbitration for the achievement of a contract settlement , I find, convincingly demonstrates its practicality as a "moral equivalent " for economic warfare.) This Agency's long-range effort to promote the utilization of these techniques for the maintenance of industrial peace would certainly not be advanced by an acknowledg- ment that employers are free to use the lockout as an economic weapon for the achievement of collective -bargaining goals. A determination to the contrary, how- ever, would tend, at the very least, to forestall any ready resort by employers to pressure tactics "irreconcilable with the Act's requirements of reasoned discussion in a background of balanced bargaining relations upon which good faith bargaining must rest." Phelps Dodge Copper Products Corporation, 101 NLRB 360, 368: Textile Workers Union of America, CIO, et at. (Personal Products Corporation ), 108 NLRB 743. 746-147. 1 so find. While it may be "arguable" that Congress has recognized strikes and lockouts as correlative powers, which adversaries in a collective bargaining situation are equally free to exercise when a deadlock in negotiations has been reached, such a conclusion is by no means ineluctable . Essentially, it appears to be based upon the proposition that reciprocal rights and remedies with respect to the initiation of strike or lockout action guarantee a balance of powers. In the labor relations field, how- ever, history will surely provide ample support for the reverse of this major premise. Within our economic order, historically , business enterprise-rather than organized labor or some third force-has always established conditions of employment, in the first instance . And employers as a group , by virtue of the control which they exercise over the employment relationship , have always been free to employ a widely varied range of devices, in the face of opposition , to establish and maintain the terms and conditions they consider desirable . Judicial acknowledgement of. the right of employees to strike, for a proper object , developed precisely because of WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 977 society's recognition that strike action, in specific cases, represented an effort to equalize their power to affect the substantive terms and conditions of their employ- ment with the power already vested in their employers. And no showing has been made in this case-by way of argument or otherwise-that general recognition of the right to strike has created, in its turn, a type of economic imbalance properly subject to redress-within the purpose and spirit of modern legislation-specifically by the recognition of the right of employers to take lockout action. Legalization of the temporary employer lockout as a collective-bargaining pressure tactic-even if its legitimate use were confined to the exertion of economic pressure on a union's bargaining position after the development of a deadlock in negotiations-would establish the right of employers to utilize yet another weapon for the purpose of economic attrition, despite the general interest of society in the limitation of "trial by battle" in the labor relations field. It would extend the area of industrial strife, and multiply the possibility of interruptions to commerce from labor disputes. Cf. Morand Brothers Beverage Co., et at., 91 NLRB 409, 412-413. Such a result would clearly be in derogation of the statutory objectives-and an intent to promote it may not be imputed to Congress lightly. This Agency's second Morand decision, previously noted, represents its most recently articulated views with respect to the issue now under consideration. The Board's language suggests the extent of the statutory proscription applicable under the circumstances; its limitations, however, are also indicated. Specifically, the Board observed that: We, of course, do not say that an employer is proscribed from temporarily terminating his operations under all circumstances whenever such action hap- pens to be taken after a bargaining impasse. We have already held in the Betts Cadillac case that such action, where necessitated by particular operational difficulties created by an impending strike, is not proscribed by the statute. We continue to adhere to the general view that an employer is free to terminate the employment relationship of his employees for any reason, or for no reason, so long as the purpose or necessary effect of his conduct is not to interfere with the rights of employees protected by the Act. We say only that the right of employees to adhere to a position taken by their unions in good faith in collec- tive bargaining is one of the most important rights protected by the Act, that a temporary lockout which has as its purpose causing employees to recede from the bargaining position of their union is presumptively an interference with that right and violative of the Act. This presumption is rebuttable, in our opinion, only by a showing that the employer cannot operate without a con- tract, or, as [in] the Betts Cadillac case, without assurance that he will not be struck. To state the matter otherwise: An employer's interest in the achievement of "more desirable" terms for himself cannot properly be held to legitimatize is suspension of operations on his part after the development of a collective-bargaining impasse; a determination that employers may resort to "lockout" action for the purpose in- dicated would necessarily impair the statutorily guaranteed rights of the employees affected. And in the absence of any clear congressional indication that these rights ought to be considered qualified, and subject to the asserted right of the employer to initiate a work stoppage in the pursuit of substantive bargaining goals, this Agency may not recognize the suggested qualification. N.L.R.B. v. Peter Cailler Kohler Swiss Chocolates Company, Inc., 130 F. 2d 503 (C.A. 2); see, specifically, the language of Judge Hand therein, previously noted. In the light of these decisional principles, and upon the entire record, I find that the Respondent Association, the Respondent Members, and the other contractors represented, by the closure of their business operations and the layoff of their employees during the course of collective-bargaining negotiations with the Union for the purpose of exerting economic pressure on the Union's bargaining position, interfered with, restrained, and coerced the employees in the exercise of rights statutorily guaranteed, and discriminated in regard to their employment tenure in a manner necessarily and reasonably calculated to discourage their membership in the Union and activity in its behalf. (2) The Respondent Hoffman With respect to the Respondent Hoffman, the contention is made that whatever layoffs occurred were effectuated as a defensive measure reasonably calculated to protect the business of the firm from the hazards implicit in the Union's previous strike threats, the confusion which resulted, and the potentiality of "extreme" eco- nomic loss. 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the light of the available evidence, however, I find myself constrained to reject these contentions as deficient in merit. At the outset, it may be noted that the Union's decision to dispatch a copy of its February 23 letter to Respondent Hoffman, specifically, deserves characterization as a strike threat. The firm was, concededly, not represented in the negotiations then under way. Nevertheless, the record establishes that it was privy to a 1956-57 standard union agreement, which was about to expire. The Union's February 23 letter was addressed to all contractors under agreement with the organization; it solicited a clarification of each contractor 's position , and reported the determination of the union membership not to continue working after March 1 without a new agreement. The strike threat implicit in this announcement I find, was thus addressed to Respondent Hoffman, among others. On February 28, 1957, however, President Walter Burns Hoffman was clearly apprised by the Union's business manager that the strike threat implicit in the February 23 letter had been withdrawn. (The testimony of the firm's project superintendent, which I credit in this connection, indicates that he, personally, had already been informed of the Union's intention to avoid a work stoppage; Burroughs appears to have advised him 1-2 days before March 1 that the Union would "very possibly" have a little trouble with the contractors involved in the Salem negotia- tions, but that the Respondent Hoffman "shouldn't" be affected.) Hoffman was advised, I find, of the Union's willingness to continue supplying men at the Re- spondent Hoffman's Western Kraft project; and he was informed, I find, of the union committee's telegraphic announcement with respect to the willingness of the organization's membership to continue work for the contractors represented by the Respondent Association herein. Under the circumstances, the attempt of the Respondent Hoffman 's counsel to analogize his client's situation with that considered by this Agency in the Betts Cadillac Olds case deserves characterization as unwarranted. The labor organiza- tion in that case threatened to strike, took a strike vote, notified the employers affected of the vote result, rejected their last offer, struck several of the employers associated for the purpose of contract negotiations, and stated its position with re- spect to the possibility of future strikes so ambiguously as to warrant an assumption by employers not yet affected that the union-sponsored strike might also affect them. In the present case no official strike action was taken. Every previous indication that a stoppage of work by the employees involved might follow the termination of the 1956-57 agreements was explicitly withdrawn. And on the afternoon of February 28, when President Hoffman was advised of this turn of events, no contractors' operations had been suspended. This Agency's Betts Cadillac Olds decision, therefore, may be disregarded as completely inapposite. Reference has been made, elsewhere in this report, to the complete absence of evidence sufficient to support an inference that the Union intended, nevertheless, to effectuate a no-contract-no-work policy at the shops and construction projects of Respondent Hoffman and the contractors with Association representation , upon the termination of the 1956-57 agreements. The absence of evidence sufficient to justify any fear by the Respondent Members with respect to the possibility of delayed strike action has also been noted . As to Respondent Hoffman , specifically, addi- tional evidence of the Union's intention to continue work may be noted; several employees who attempted to initiate a work stoppage at the firm's Western Kraft operation on the morning of March 1 were expressly instructed by Business Manager Burroughs to resume work, without date. (The testimonial ambiguity which has made it difficult for me to determine , satisfactorily, whether President Hoffman instructed his Western Kraft job superintendent to lay off the firm's employees before be became aware of these developments, or after he learned about them, has already been noted. The firm's counsel sought to establish, however-in the course of President Hoffman's redirect examination-that the instructions given to its job superintendent were issued by him after his receipt of information with respect to the March 1 incident. For the present, I have accepted this interpretation of the record . It follows, I find , that Hoffman's instructions with respect to the suspension of the firm's plumbing and pipefitting work at the Western Kraft project were issued after his receipt of a clear-cut indication that the union leadership desired his em- ployees to continue work.) Upon the entire record, therefore, I am entirely satisfied that Respondent Hoff- man's conduct was not based upon any real strike threat. And the confusion al- legedly displayed by certain employees in the course of the March 1 incident was completely dissipated , I find, by the explicit instructions which Business Manager Burroughs issued after he learned about the abortive work stoppage. If, thereafter, Job Superintendent Ewing and the Respondent's president remained uncertain with WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 979 respect to the prospects of continued operation, either of them could have sought a clarification of the situation from Business Manager Burroughs. Job Superintendent Ewing could not testify with respect to his own efforts in that regard, and there is not the slightest indication that President Hoffman, when apprised of his job superintendent's supposed uncertainty, made any attempt whatever to have Bur- roughs questioned. The available evidence, in short, will support an inference that Job Superintendent Ewing and President Hoffman were not, actually, confused with respect to the Union's intention to continue work indefinitely; if, perchance, the testimonial record could be interpreted to justify a contrary conclusion, I would be constrained to hold that their confusion rested upon their own failure to seek a clarification from the Union's business manager. With matters in this posture, it follows that the potentiality of some "extreme" economic hardship for Western Kraft, and the resultant impairment of the relation- ship between the Respondent Hoffman and its customer, was too remote and specu- lative .to justify the firm's March 1 suspension of operations as a legitimate defensive measure. In the brief submitted by the Respondent Hoffman's counsel, a rhetorical question is posed in this connection: Can it be found that Hoffman had the right to risk closing the Kraft plant, by having its machinery torn apart when the strike hit, with no way of getting it in operation again? In the light of the available evidence, however, the "risk" allegedly contemplated by President Hoffman prior to his decision to suspend operations cannot be character- ized, properly, as more than speculative. Nothing in the record will support a con- clusion that the Union's strategy was to keep the Respondent Hoffman or any other contractor "off balance" with a threat of momentary strike action hanging over their heads at all times. Nor will the evidence sustain a factual finding-suggested by the Association's counsel-that the Union "set out" to produce an uncertain operat- ing situation. Cf. Betts Cadillac Olds, supra. The testimony of Job Superintendent Ewing, previously noted, establishes that Business Manager Burroughs, on two sep- arate occasions during the stoppage, made an unconditional offer to supply the Respondent Hoffman with men; as a witness, Ewing expressed his belief that the business manager's offer was made in good faith. And upon the entire record, I so find. The nature and extent of the losses which Western Kraft might, conceivably, have had to fear-in the event of a sudden cessation of work by the Respondent Hoffman's plumbers and pipefitters while its paper mill was shut down-need not be explicated in this report. The legitimacy of the Respondent Hoffman's interest in the protection of its customer, Western Kraft, against undue loss-as the possible result of later strike action by the union membership, strategically timed-and the legitimacy of the firm's concomitant interest in the protection of its business reputa- tion and the preservation of customer good will-may be conceded. But its inability to establish, through reliable, probative, and substantial evidence, that these interests were threatened by the course of conduct attributable to the Union herein needs no elaboration at this point. Upon the entire record, however, I am satisfied that Respondent Hoffman's decision to suspend the employment of the plumbers and pipefitters at the Western Kraft project was not, actually, motivated by President Hoffman's professed desire to forestall the possibility of a delayed strike which would seriously inconvenience its customer. It is the General Counsel's contention, previously noted, that all of the Respond- ent Members suspended operations for the "obvious purpose" of increasing the economic pressures on the Union to abandon certain contract demands, and that Respondent Hoffman, specifically, acted in concert with the Respondent Association and contractors which that organization represented. This contention obviously raises an issue with respect to Respondent Hoffman's real motive. Any attempt to resolve that issue must necessarily take into account certain con- siderations ably summarized by Trial Examiner Schneider in the Betts Cadillac Olds case: Since . motive is not, like an act, an easily identifiable fact, it must be inferred from two factors-one testimonial, the other circumstantial. The testimonial element is the oral evidence of the dealers as to what their purpose was. Such evidence, being largely impossible of direct contradiction, is in a certain sense self-serving, after the fact and interested, and therefore subject to possible discount. The circumstantial factor involves a scrutiny of the dealers' acts and declarations at the time of the event, on the assumption that 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what a person does reflects his purpose more certainly than what he may say later. However, merely because testimony cannot be directly contradicted or di- rectly disproved, it does not lose all probative force. The man is, after all, the primary authority as to what his state of mind is. And his affirmation as to what it was is not to be ignored merely because it is favorable to him and adverse to his opponents. Immunity from direct attack is a factor to be con- sidered in assessing any testimony, but it is not to be easily presumed that self- interest or safety makes perjury likely. . . . Allowances must, of course, be made for the possibility of honest self-deception when a witness' interest may be affected by his version as to what has happened before. Under the cir- cumstances, the most satisfactory evidence as to motive is probably that which is not subject to the infirmity of bias-namely, circumstantial. With these considerations in mind, we may turn to the testimonial record relevant to a determination of Respondent Hoffman's motivation. When questioned with respect to his reaction to the announcement of Business Manager Burroughs that the union members in his employ would continue work, President Hoffman described the first consideration which crossed his mind as a realization that a continuation of work on his part would weaken the other em- ployers involved in contract negotiation. He went on to describe his first reaction, also, as a realization that he would have to give "proper consideration" to the sup- port of these employers. And his further testimony clearly indicates that the con- siderations which his counsel now advances as sufficient to legitimatize the layoff of the plumbers and pipefitters at the Western Kraft operation reflect a secondary reaction. Even standing alone, this testimony would seem sufficient to warrant a conclusion that the speculative possibility of subsequent employee strike action was not a determinative factor in President Hoffman's decision. Consideration has also been given, however, to the absence of "affirmative" or "independent" evidence that the Union's new position actually created an "unsettled" condition at the project, and President Hoffman's conceded failure to request assurances from Business Manager Burroughs that the firm would be able to continue work fot any definite period of time. And the testimony of Reagh Bonn, the Respondent's piping manager, should be noted; at several points, it reveals a reference to Respondent Hoffman's efforts to "work" with the Respondent Association. Upon the entire record, therefore, it is found that Respondent Hoffman suspended operations and laid off its plumbers and pipefitters on March 1, 1957, to support the position of the Respondent Members directly involved in the negotiation of a new agreement. Having reached this conclusion, I find it unnecessary to determine whether Respondent Hoffman ever "agreed to be bound" by any collective-bargaining negotia- tions between the Respondent Association and the Union herein. I find a determina- tion unnecessary, also, with respect to the General Counsel's contention that the ction taken by this Respondent, when it suspended the employment of its plumbers and pipefitters at the Western Kraft project, was action "in concert and in asso- ciation" with the Respondent Association, Respondent Members, and various other contractors. At the very least, it deserves characterization as action taken to support these Respondent Members, already involved in a closure of operations. And a course of conduct motivated by Respondent Hoffman's "sympathy" with the contractors in question can, of course, stand on no better footing than their own. Since Respondent Hoffman's course of action, in short, was intended primarily to aid and abet the contractors represented by the Respondent Association in their effort to exert eco- nomic pressure on the Union's bargaining position, their motivation, previously found, must be imputed to this Respondent. And I so find. For the reasons previously noted in this report, Respondent Hoffman's decision to suspend its plumbing and pipefitting operations at Western Kraft on March 1, 1957-and to lay off, temporarily, the plumbers and pipefitters in its employ-must, therefore, be considered reasonably calculated to interfere with, restrain, and coerce employees in the exercise of rights statutorily guaranteed, and reasonably calculated to discourage their union membership and activity by discrimination with respect to their employment tenure. (3) Buchanan, Lord, and Widmer It is the General Counsel's contention, previously noted, that Respondents Buchanan, Lord, and Widmer, acting in concert with the Respondent Association and the various contractors represented by that organization, locked out their em- ployees on March 1, 1957. The argument that these Respondent Members sus- WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 981 pended productive activity within the Union's territorial jurisdiction, and laid off their employees, in "concert" with the contractors involved in the contract negotia- tions, however, overstates the situation. The available evidence, for example, establishes that Buchanan, Lord, and Widmer were never affiliated with the Respondent Association; it establishes, also, that they never authorized that organization to negotiate an agreement in their behalf. No representative of these Respondent Members, I find, participated in the nego- tiations . The testimonial record, therefore, will provide no support for the General Counsel's contention that Buchanan, Lord, and Widmer agreed, expressly, to be bound under any agreement negotiated by the Respondent Association and the Union herein. In accordance with the request of counsel for the Respondents designated, I have taken official notice of the custom and practice prevalent in the construction industry: that contractor-employers foreign to the jurisdiction of a local union, when hiring members of that local union, necessarily pay the scale and observe the terms of a labor contract negotiated by that local union and local contractors. The readiness of the Respondent Members to follow this custom and practice has been evidenced-in the case of Buchanan and Lord specifically-by the execution of letters of understanding, addressed to the Union herein, indicative of their readiness to maintain the terms and conditions of employment established within the Union's territorial jurisdiction, pursuant to the standard trade agreements currently effective between that organization and various local contractors. Respondent Widmer, also, appears to have given verbal assurances to the Union that it would observe the terms of the trade agreements then in force. These commitments, however, cannot really be said to evidence an "agreement to be bound" by the 1957 collective-bargaining negotiations. And I so find. Alternatively, however, the complaint alleges that Buchanan, Lord, and Widmer allied themselves with the Respondent Association and the Respondent Members, by virtue of their action in concert with, and in sympathy with, the employer organiza- tion, its member firms and various other contractors, which involved the closure of their construction projects within the Union's jurisdictional area and the March 1 layoff of their employees with union membership. Upon the entire record, I find merit in this contention. While the available evidence will not support a conclusion that the March 1 layoffs effectuated by Buchanan, Lord, and Widmer were the re- sult of an express "concert" between these contractors and the firms represented by the Association in contract negotiations, I am satisfied that the Respondent Mem- bers in question, essentially, took action in sympathy with the associated contractors. It is suggested, in behalf of these Respondents, that the action which they took was in no way similar to that of the contractors with Association representation. Rather, the action attributable to Buchanan, Lord, and Widmer is characterized as "a temporary layoff, effective March 4, 1957, until the situation could be correctly assessed as to its effect" upon the Respondents in question. I find no merit in this contention, No employee of Buchanan, Lord, or Widmer was so advised. Walter J. Widmer did advise the only employee affected by his action that, the firm desiring not to embarrass him or itself under the circumstances prevailing on February 28, a choice had been made to "stop work temporarily and await developments and an understanding of the present difficulties" characterized as bad for both labor and management. This description of the layoff's nature and purpose, however, surely deserves characterization as euphemistic. (On the witness stand, Widmer professed his "puzzlement" over the situation, when the agreements expired, and insisted that his only information with respect to the Willamette Valley negotiations then in progress was derived from gossip and rumor. Upon the entire record, however, I am satisfied that the witness-then the president of a statewide plumbing contractor's organization-was, in fact, fully apprised of developments and completely under- stood the "difficulties" which resulted from the deadlocked negotiations.) Buchanan and Lord made no attempt to obscure the essential significance of their action by circumlocution. And the present contention of these Respondents that they shut down temporarily until they could "clarify their position" in relation to the work stoppages already initiated by the associated contractors must be rejected as an afterthrought. To state the matter briefly: These Respondents suspended productive activity and laid off their employees on the basis of their counsel's advice that it would be wise for them to do so. Considered in its total context, their testimony certainly suggests that, if they analyzed the thought behind their counsel's advice at all, they understood it to be based upon the belief that their interests would necessarily parallel those of the associated contractors, and that their continued operation would be considered likely to undermine the efforts of the Respondent 5 3 5 8 2 8-60-v oI. 12 5-6 3 982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Association to subject the union membership to economic pressure. I so find. (As a witness, Widmer conceded his awareness of the fact that some contractors affected by the Portland negotiations-in which his counsel was directly involved-felt that employers throughout the State ought to "try and hang together" in the things they did.) Buchanan, Lord, and Widmer report the receipt of conflicting notices from both union and employer sources with respect to the likelihood of a March 1 work stop- page; they contend that the information available to them indicated the possibility of a union-sponsored withdrawal of the men on their jobs in the area, to create added pressure upon the negotiating employers. With respect to this contention, however, it may be noted at the outset that the Union's February 23 letter was not addressed, specifically, to so-called "outside" contractors bound to observe contractual standards within the labor organization's territorial jurisdiction pursuant to a letter of under- standing or custom; it was addressed to contractors under union agreements. Upon an assumption for the sake of argument, however, that Buchanan, Lord, and Widmer might reasonably have construed the letters as an indication that their own projects would be affected by the Union's no-contract-no-work policy, the commitment proferred by Business Manager Burroughs on February 28 with respect to a con- tinuation of work at their several projects clearly warrants characterization as suf- ficient to dispel their uncertainties in that connection. (It is now asserted that these Respondent Members anticipated the possibility of a union-sponsored employee with- drawal to create added pressure upon the employers directly involved in the con- tract negotiations. No attempt has been made, however, to explain how a work stoppage initiated by the employees of Buchanan, Lord, and Widmer would add to the pressures already at work, affecting the associated contractors. In effect, the Respondent Members in question appear to be arguing that a strike which placed them in the same position as the local contractors would add to the pressures on the latter to seek a contract settlement. In the absence of any attempt to outline the logic supporting this view, I find that it played no part in the decision of Buchanan, Lord, and Widmer to suspend operations.) The further contention of Buchanan, Lord, and Widmer that they laid off their employees temporarily as a "reasonable, prudent precaution" because of the possibility that they might suffer losses of material and equipment, the possibility of danger to the public, and to maintain good rela- tions with owners and other contractors on their jobs, must, in any event, be re- jected. At the outset, it may be noted that none of the three employers cited these reasons at the time, to explain or justify their action. Even if they had, such an at- tempt at justification would have been unreasonable-primarily, because of the absence of any real strike threat reasonably calculated to affect their operations as of March 1 or thereafter, and, secondarily, because of the absence of any evidence what- ever that any of them faced a possible loss of materials and equipment, or had any reason to anticipate danger to the public or an impairment of their good relations with owners and other contractors in the event of a suppositious strike. Widmer's testimony that he suspended productive activity to avoid embarrassment for his employee-and, specifically, that he acted to forestall the possibility that the Union might censure or fire the man for continuing to work-surely cannot be con- sidered persuasive. In the light of the information available to this Respondent prior to March 4, with respect to the Union's willingness to continue work, it is difficult to see how Widmer could reasonably have anticipated embarrassment or possible censure for the plumber in his employ if he did not suspend operations. I find that he did not act on the basis of such an anticipation. Upon the entire record, I am satisfied that the actual motivation attributable to Buchanan, Lord, and Widmer may legitimately be inferred from their awareness of the fact that any agreement reached in the negotiations between the Union and the associated contractors would fix the terms and employment conditions which they would have to meet within the Union's territorial jurisdiction. Their awareness of a community of interest with the associated contractors, as a result of this expectation, may be inferred from Donohue's explicit acknowledgement of the correctness of an observation by the Association's counsel that: . .. if the union was successfully able to accomplish those ends [a full 35-cent an hour increase plus the 30-cent fringe benefits] by a strike against the people in the association, the same effect would apply to you as though they had struck against you. It may also be inferred on the basis of Lord's testimonial acknowledgement of his earlier statement to Burroughs that as long as the rest of the employers were "going out" he would go with them. When questioned further in this conversation by the Respondent Association's counsel, Lord testified as follows: WILLAMETTE ASSN. OF PLUMBING & HEATING, ETC. 983 Q. Now, you recognize, then, that the net effect of any strike against the rest of them is going to be the same as though it were against you, is that correct? A. Yes. Q. And if you continued to work and thereby make the strike more successful against the others, you are only inviting them to then shut you down until they- Mr. LATIMER (Interrupting). This is highly speculative. TRIAL EXAMINER: I will overrule the objection. Q. (By Mr. Lubersky.) And you were aware of those factors and they entered into your decision, did they not? A. Yes, sir. [Emphasis supplied.] The significance of this testimony with respect to the issue of motivation herein, would seem ;to be patent. The decision of these Respondents, also, to resume work subsequently-upon the bare suggestion of their counsel that matters had been "squared away" and that it would be a"acceptable" for them to renew operations-seems to have been based upon something more than a bare belief that their situation had been clarified. (George Lord, when subsequently questioned by Earl Forsyth, chairman of the Association's negotiating committee, as to the reason for his resumption of work, reported only that his counsel had instructed him to take such action.) At the very least, their resumption of work under the circumstances indicated would seem to warrant an inference with respect to their receipt of some assurance that renewed productive activity on their part would not "embarrass" the contract negotiations or their relationship with the contractors bound by Association representation. I so find. Upon the entire record, therefore, it is concluded that Respondents Buchanan, Lord, and Widmer suspended operations on March 1, 1957, primarily as a demon- stration of their desire to cooperate with the Respondent Association and the various contractors represented by that organization, and in order not to "embarrass" that employer group. For the reasons previously indicated in this report, it is found that such a temporary suspension of operations necessarily impinged upon the rights of employees statutorily guaranteed, and constituted an unfair labor practice. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The course of conduct attributed to the various Respondents in section III of this report-since it occurred in connection with their operations as described in section I of the report-had and has a close, intimate, and substantial relationship to trade, traffic, and commerce, among the several States, and has tended and would tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondent Association and the various plumbing and heating contractors it represents, together with Respondents Hoffman, Buchanan, Lord, and Widmer, have engaged in certain unfair labor practices, it will be recom- mended that all of the Respondents designated cease and desist therefrom, and that they take certain affirmative action designed to effectuate the policies of the statute. Specifically, it has been found that the employer members of the Respondent Association and certain other associated contractors laid off their employees, improp- erly, on February 28, 1957, at the close of the business day, and that Respondents Hoffman, Buchanan, Lord, and Widmer took similar action on the following day. The record establishes that the three Respondent Members last designated offered reinstatement to their employees as of March 6-7, 1957, and that Respondent Hoffman and the employers represented by the Respondent Association took similar action effective as of the 20th of the month. The available evidence warrants an inference that all of the employees who desired reinstatement were, in fact, reemployed. There would seem to be no necessity, under the circumstances, for a recommendation that any employee be reinstated. It will be recommended, however, that the various Respondents make whole each of their laid-off employees for any loss of pay or other incidents of the employment relationship which they may have suffered by reason of the discrimination practiced against them, by the payment to each of them, of a sum of money equal to the amount which he normally would have earned as wages during his period of layoff, less his net earnings, if any, during that period. Cf. Crossett Lumber Company, 8 NLRB 440, 497, 498; Republic Steel Corporation v. N.L.R.B., 311 U.S. 7. Since the layoffs found to be discriminatory were terminated prior to the end of the calendar year's first quarter, 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find it unnecessary to require that each employee's losses should be computed on a quarterly basis, in the manner customarily prescribed by this Agency. See F. W. Woolworth Company, 90 NLRB 289, 291-294; N.L.R .B. v. Seven-Up Bottling Com- pany of Miami, Inc., 344 U.S. 344. In order to assure expeditious compliance with this recommendation, it will be recommended , finally, that the various Respondents, upon request, make available to the Board and its agents , for examination and copying, all payroll and other records necessary to enable this agency to analyze and compute the amounts of backpay due. Since the available evidence, however , will not warrant an inference that the various Respondents, in the commission of the unfair labor practices found, were motivated by some affirmative antipathy to Plumbers and Steamfitters Local Union No. 347, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada , AFL-CIO, as a labor organi- zation, or to its employee members-although their course of conduct , herein found to be subject to statutory proscription , may deserve characterization as a course of conduct improperly motivated in a legal sense-no inference may be drawn that the Respondents, when apprised of the national labor policy , will nevertheless continue to engage in these unfair labor practices, or any others forbidden under the statute. No recommendation will be made, therefore that the Respondents be required to cease and desist from such other unfair labor practices, or that they be required to post notices to that effect. In the light of the foregoing findings of fact , and upon the entire record in the case, I have reached the following: CONCLUSIONS OF LAW 1. The Willamette Association of Plumbing and Heating Contractors , Inc., and its various employer members and associated contractors , Hoffman Engineering Co., Buchanan Co., Inc., W. T. Lord and George A. Lord, d/b/a Lord Bros., Contractors, and Widmer Plumbing & Heating Co., are employers engaged in commerce and business activities which affect commerce within the meaning of Section 2(2), (6), and (7 ) of the Act, as amended. 2. Plumbers and Steamfitters Local Union No. 347, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act, as amended , which admits employees of the various employers designated to membership. 3. By discrimination in regard to the hire or employment tenure of their employ- ees, reasonably calculated to discourage membership in the above-designated labor organization, the employers named have engaged in and are engaged in unfair labor pracitces within the meaning of Section 8(a)(1) and ( 3) of the Act, as amended. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce, within the meaning of Section 2(6) and (7) of the Act, as amended. [Recommendations omitted from publication.] Retail Clerks International Association , AFL-CIO, and Retail Clerks Union Local 770, AFL-CIO and Food Employers Council, Inc. Case No. 01-CD-448. December 18, 1959 DECISION AND DETERMINATION OF DISPUTE Food Employers Council, Inc. (herein called the Council), filed charges with the Regional Director for the Twenty-first Region, and amended charges thereafter, alleging that Retail Clerks International Association, AFL-CIO, and Retail Clerks Union Local 770 (herein called the International and Local 770, respectively, or the Clerks, .collectively), had engaged in certain unfair labor practices within the 125 NLRB No. 86.