Oshkosh Ready-Mix Co.

350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inland Trucking Co. and Wesley Meilahn Co-Partners d/b/a Oshkosh Ready-Mix Co.; Cook & Brown Lime Co.; and Inland Trucking Co. and Wesley Meilahn Co-Partners d/b/a Waupun Ready-Mix and General Teamsters, Warehouse and Dairy Employees, Local Union No. 126, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 30-CA-835 Lime Co., and Inland Trucking Co. and Wesley Meilahn Co-Partners d/b/a Waupun Ready-Mix, Oshkosh, Wisconsin, their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order TRIAL EXAMINER 'S DECISION October 27, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On March 7, 1969, Trial Examiner Sidney J Barban issued his Decision 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 therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision Thereafter, the Respondents filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel The National Labor Relations Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondents, Inland Trucking Co. and Wesley Meilahn Co-Partners d/b/a Oshkosh Ready-Mix Co.; Cook & Brown 'We note and correct the following minor errors in the Trial Examiner's Decision which in no way affect the result in this case On July 29, 1968, rather than July 28, Respondent Cook & Brown reached agreement with the Union over the terms of a new collective-bargaining agreement and the strike against that Respondent terminated on July 30, 1968 With regard to the locked-out employees of Oshkosh Ready-Mix, one employee indicated an intent to return on Monday following the termination of the lockout, which would be July 22 rather than July 19, 1968 Also, it appears that the picketing at Waupun took place on the second day of the lockout rather than on the first day STATEMENT OF THE CASE SIDNEY J. BARBAN, Trial Examiner This matter was heard before Trial Examiner Sidney J. Barban at Oshkosh, Wisconsin, on October 30 and 31, 1968, upon allegations in the complaint, issued on September 30, 1968, based on charges filed on May 27, 1968, that the above-named Respondents' had violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended In their answer to the complaint, Respondents denied that they had violated the Act Upon the entire record in this case, from observation of witnesses, and after due consideration of the briefs filed by the General Counsel, Respondents, and the Charging Party (herein called the Union), the Trial Examiner makes the following FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENTS , THE STATUS OF THE UNION Oshkosh RM, which is a partnership of Wesley Meilahn and Inland Trucking Co engaged at Oshkosh, Wisconsin, in the sale and delivery by truck of ready-mixed concrete to the buliding and construction industry, annually receives in excess of $50,000 for materials and services supplied to enterprises, each of which is an employer engaged in the commerce, and annually receives at its location in Wisconsin materials valued in excess of $50,000 originating from points outside the State of Wisconsin Cook & Brown, a Wisconsin corporation engaged at Oshkosh, Wisconsin, in the fabrication of steel products and the sale and delivery by truck of ready-mixed concrete, fuel oil, steel products, and other related products, annually receives in excess of $50,000 for materials and services furnished to enterprises, each of which is an employer engaged in commerce, and annually receives at its location in Wisconsin materials valued in excess of $50,000 originating from points outside the State of Wisconsin Waupun, which is a partnership of Wesley Metlahn and Inland Trucking Co., engaged at Waupun, Wisconsin, in the sale and delivery by truck of ready-mixed concrete to the building, and construction industry, annually receives in excess of $50,000 for materials and services supplied to enterprises, each of which is an employer engaged in commerce, and annually receives at its location in Wisconsin materials valued in excess of $50,000 'Respondents will be referred to individually herein as set forth in parenthesis Oshkosh Ready-Mix Co (Oshkosh RM), Cook '& Brown Lime Co (Cook & Brown), Waupun Ready-Mix (Waupun) All dates are in 1968, unless otherwise noted 179 NLRB No. 56 OSHKOSH READY-MIX CO. 351 originating from points outside the State of Wisconsin. Respondents concede in their answer, and it is hereby found, that Oshkosh RM, Cook & Brown, and Waupun are and have been employers engaged in commerce or in an industry affecting commerce within the meaning of the Act It is further found that the Union is a labor organization within the meaning of the Act II. THE ALLEGED UNFAIR LABOR PRACTICES A The Issues. Positions of the Parties 1. Simply summarized, the General Counsel rests his claim that the Respondents violated the Act upon the following stipulated facts That on May 2, 1968, at the termination of their separate collective-bargaining contracts with the Union , each of the Respondents looked out all of their regular employees represented by the Union and that each of the Respondents thereupon proceeded to perform the work normally done by the locked-out employees by hiring new employees on a temporary basis for the period of the lockout (some of whom, however, were retained after the end of the lockout to do other work ), and by utilizing supervisors and other members of management who did not normally do such work. At the outset , General Counsel disclaimed any contention that the lockout at its inception violated the Act, but asserted that by thereafter employing replacements for the locked -out employees and continuing operations while maintaining the several lockouts, Respondents violated the Act.2 2. The Union agrees with the contention of the General Counsel that Respondents violated the Act by employing replacements for the locked-out employees in the circumstances , but asserts, in addition, that Respondents also violated the Act by locking out their employees in the first instance , and claims that the allegations of the complaint are sufficiently broad to allow this issue. The General Counsel resisted this position , stating that the Union's contentions had been considered by his office and specifically rejected. At the hearing, the Union, in support of its position, in part, sought to adduce testimony to the effect that "the union had specifically pledged not to strike any of the employers who are Respondents in this case , that the union, further , had agreed to continue negotiating; that the union, further, had agreed to postpone negotiations until extrinsic facts all parties were relying on for their bargaining positions were clarified; that the union would not have struck any of the [Respondents] because of the status of the negotiations ." Upon objection by Respondents, the Trial Examiner held that the Union might not adduce such testimony in support of its position that the lockouts were illegal from their inception , because that would enlarge the complaint to include a violation of the Act which the General Counsel had himself abjured. See United Steelworkers of America (Luxaire, Inc ) v. N L R.B, 393 F.2d 661, 664 (C A.D C.) 3 'In material part the complaint alleges, "During the period from on or about May 2, 1968, until July 19, 1968, Respondent discriminated against their employees, in the units described by locking out said employees, thereby depriving them of employment , at a time when Respondents were continuing to operate their respective businesses by hiring and using replacements to perform the work normally performed by said unit employees," thereby violating Section 8(a)(1) and (3) of the Act 'At a later stage of the proceedings, upon objection , the Trial Examiner also denied the Union's offer to prove by an official of Cook & Brown In its brief the Union further argues that the lockout violated the Act because it was assertedly an improper attempt by the Respondents, each of which constituted a separate bargaining unit, to force the Union to accept a multiemployer bargaining unit 3. Respondents' position, in essence, appears to be that in the absence of any independent evidence of union hostility, Respondents could lock out their employees and employ others on a temporary basis to do the work of the locked-out employees in aid of Respondents' bargaining positions, as a matter of legal right, under the decisions of the Supreme Court in American Ship Building Co v. N L R B, 380 U S 300, and N L R B. v John Brown, et al, d/b/a Brown Food Store, 380 US 278 (often referred to hereinafter, respectively, as American Ship and John Brown) Respondents also argue that they were justified in their actions since, in anticipation of their busy, or busier, season in the months ahead, they desired to obtain new collective-bargaining contracts before they became more vulnerable to strike action. Thus Respondents argue in their brief that "The Union's strike leverage would be greatest against Respondents in their busy season which is between' July-September . Against this background, Respondents' objective was to obtain a labor contract at the earliest possible date subsequent to the expiration of the most recent labor agreement and to avoid, if possible, a strike during the busy season "' B. The Bargaining Relationships Prior to the Lockout As previously noted, the Union contends that the three Respondents did not constitute a multiemployer bargaining unit (and, in fact, denies that all three were involved in the bargaining before the lockout), but asserts that each of the three constitutes a separate bargaining unit. Respondents seem to contest this positions although this is not altogether clear Thus, in their answer to the complaint, Respondents agree that each Respondent had a separate contract with the Union covering employees in separate bargaining units, "each appropriate for purposes that "in his 20 years with Cook and Brown before this summer there was never a strike of Local 126 against that company, he would further testify they have bargained numerous contracts during that time and that none of the negotiations have resulted in strike activity or other forms of work stoppage " 'It appears however, as discussed at the hearing , that Respondents "do not contend that either past experience with strikes or the threat of a strike" by the Union in the negotiations in 1968 constitutes part of their defense to the complaint in this proceeding Respondents indicated that they did not intend to adduce such evidence, in order to avoid the possibility of opening up the issue of the legality of the lockout, itself, cf Frito Company v N L R B, 330 F 2d 458 (C A 9), and the only evidence of discussion of a possible strike during the negotiations was volunteered by witness Meilahn, on cross-examination I have considered this evidence and have accorded it no weight because of the manner in which it was given and the impression of unreliability made by Meilahn in this and some other instances, which would make me reluctant to credit the testimony without persuasive corroboration Further, careful study of the record and the Respondents' brief indicates that Respondents ' position on this matter continues to be that discussed at the hearing If it were otherwise, it would be necessary that the record be reopened to allow the Union an opportunity to develop the issue, inasmuch as the Union was restricted in substantial part in developing this point because of the Trial Examiner's understanding that Respondents were not claiming such evidence as part of their defense 'Respondents, in their brief, state that the issue to be decided in this case is "whether three employers bound together in negotiations as an informal association violate Section 8(a)(1) and (3) of the Act by hiring and using temporary employees during a lawful lockout9" (Emphasis supplied ) 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of collective bargaining" Further, Respondents, although admitting that they negotiated jointly with the Union in 1968, did not admit (and therefore must be taken to have denied) the allegation that Respondents negotiated in 1968 as "an informal association " (But see fn 5, supra ) The General Counsel seems to contend that this issue does not affect his theory of the case, no matter how decided Among the three Respondents, Cook & Brown has had bargaining relationships with the Union for 30 to 40 years Oshkosh RM, so far as the record shows, has had a collective-bargaining contract with the Union since 1964 When the present owners took control of Waupun in 1965, it appears that a previous contract with the Union had recently expired New contracts were negotiated in 1965 between each of the Respondents and the Union, which agreements expired at midnight, on the evening of May 1, 1968, It was testified that each of these agreements was different, although the details do not appear in the record. Nor does it appear whether these previous contracts were negotiated jointly or separately As previously noted, there is no evidence of any previous work stoppage as a result of collective bargaining between the Union and the Respondents. It is not disputed that Cook & Brown and Oshkosh RM, both of whom are located in or near Oshkosh, Wisconsin, and are competitors in the concrete ready-mix business, negotiated jointly with the Union in 1968, prior to the lockout It is also clear that prior to the start of these negotiations, Meilahn, one of the owners of Waupun (who are also the owners of Oshkosh RM) told the Union that Waupun wanted to delay discussion of the Waupun contract until the conclusion of negotiations for the Oshkosh RM contract, indicating a desire to continue the prior situation in which Oshkosh RM and Waupun had similar contracts with the Union, except for a wage differential of 25 cents. There is some dispute as to whether Waupun was discussed at the first negotiation meeting between Oshkosh RM and Cook & Brown and the Union, or only much later, after the Union, on April 5, formally requested, by letter, that Waupun meet and negotiate with the Union However, it is clear that, whenever such discussions occurred (prior to the lockout), they were kept separate from the negotiations of the other two Respondents, taking place after the end of the regular negotiations for the day, and further that Meilahn's consistent position was that he wanted to delay negotiations for Waupun until the Oshkosh RM negotiations were concluded. There was, moreover, no agreement between the Union and Waupun that the Oshkosh RM contract terms would control the Waupun agreement, with a 25-cent wage differential Wetzel, the union negotiator so testified After some evasion, Meilahn conceded that this was the case. The testimony of Respondent's witness Egan to the contrary is not credited. Prior to the lockout, there were five or six negotiation meetings, from March 29 until April 30 On April 30, during negotiations devoted to Cook & Brown and Oshkosh RM, according to Wetzel, Attorney Mueller, who first appeared at the negotiations that day, told Wetzel that there would be no further offer from the employers, and that if the current offer were not accepted, the employers would lock the employees out upon the expiration of the contracts. There was no mention of Waupun Mueller's statement was confirmed by telegram sent to the Union the following day.' The telegram read "You are hereby notified that unit employees of Also on May 1, each of the Respondents handed to each of their employees then at work a notice reading Negotiations with the Union yesterday ended in a deadlock Our last proposal included a 90 cent wage package (30 cents each year of a 3 year contract) plus other fringes. The Union refused to budge from its previous wage demands totaling $I 85 over 3 years We advised the Union at the meeting that there would be no work without a contract The current labor contract expires at midnight today, May 1, 1968. We believe that the Union's refusal to compromise its wage demands has created an unfortunate situation which forces us to engage in a lockout You are hereby notified not to report to work until further notice C. Events Following the Lockout As of May 2, Cook & Brown had 29 employees on its payroll, including 8 who were on seasonal layoff, Oshkosh RM had 8 employees on its payroll at work and 2 on layoff, and Waupun had 4 employees on its payroll at work None of these were permitted to return to work prior to July 17, 1968. During the lockout, the work ordinarily done by the employees who had been locked out was performed by employees hired for that purpose (some of whom were relatives of management personnel), who were given to understand that their tenure might be temporary, as well as by other management personnel who ordinarily did not engage in such 'work, and, in fact, had been prohibited under the union contract from doing bargaining unit work Cook & Brown used seven or eight of its management people in bargaining unit work during this period, and appears to have built up its payroll of new employees to a total of nine by June 15 At Oshkosh RM, the plant manager and one of the owners did such work, and at Waupun, the plant manager was engaged in the work of the regular employees, in addition to the new employees hired for this purpose At Oshkosh RM, the exhibits indicate a maximum of 12 new employees'by June 10, while at Waupun, 4 new employees were hired between May 23 and June 19. It was testified that the new employees were inexperienced and lacked the capabilities of the regular employees who had been locked out. On May 1, prior to the actual lockout, the Union sent a telegram to each of the Respondents adivsrng that the Union had no intention of striking at the expiration of the current contracts, and would give Respondents at least a week's notice before a work stoppage On May 2, after the lockout was put into effect, the Union picketed each of the three Respondents. It would appear that there was no cessation of operations at Cook & Brown and Oshkosh RM on May 2, the first day of the lockout (both hired new employees that day), although such operations must of necessity have been somewhat curtailed It is not clear whether Waupun was substantially engaged in its regular operations that day, although its plant manager unquestionably was on the fob.' It is indicated that the Oshkosh Ready Mix and Cook & Brown Lime Company will be locked outlet accordance with our position_given toyouatlourmeeting ontApril 30, 1968 We are available to meet further if you have a new proposal As stated to you yesterday we have nothing further to propose" The telegram was signed by Mueller, as attorney for Oshkosh RM and Cook & Brown only 'It is noted that the parties stipulated that all three Respondents OSHKOSH READY-MIX CO. Union picketed Cook & Brown and Oshkosh RM during the entire lockout and followed trucks belonging to those Respondents, both also received reports that the Union had approached some of their customers to divert business away from the Respondents Union Representative Wetzel admitted asking the customers' cooperation, and referring them to another ready-mix firm, Pipkorn Ready Mix, with which it then had no dispute (although it appears that this other firm was smaller and had less equipment than either Cook & Brown or Oshkosh RM) After the first day, so far as the record shows, the Union did not picket or take other action against Waupun. During the lockout, the locked-out employees of Waupun advised management that they were willing to return to work on the basis of the company's last offer, and Attorney Mueller, for Waupun, advised Union Representative Wetzel that Mueller had been contacted by one such employee to the same effect Wetzel acknowledged that an employee of Waupun also advised him that the employees had a "consultation" with the company and were willing to accept the company's last offer. Wetzel stated, however, that he was unaware of any attempt to resign from the Union during the lockout Also during the lockout, Respondents on several occasions refused requests by the Union that the locked-out employees be reinstated,8 Respondents taking the position that they would be reinstated when agreement was reached with the Union. Nevertheless, according to witness Brown, Respondents decided to end the lockout prior to agreement with the Union because "it was failing to achieve its purpose [and] we desired a return to work at the earliest possible date and resumption of normal operations. This was ever on our mind." However, Brown testified, in response to a query of Respondents' counsel, that this "state of mind" was not shared by Meilahn. On July 15, each of the Respondents notified the locked-out employees by letter that they would be reinstated to work, upon application, on July 17, at a rate of pay specified in the letter and otherwise under the conditions of the expired labor contracts All of the locked-out employees of Cook & Brown returned to work on July 17, but one, who, it was later determined, had quit At Oshkosh RM, of the eight employees who were originally locked out, three quit during the lockout, four returned on July 17, and one other indicated an intent to return on July 19; two employees of Oshkosh RM who were on layoff at the time of the lockout were also recalled At Waupun all four employees returned to work On July 19, the employees of Cook & Brown and Oshkosh RM went on strike Waupun was not struck and continued to operate, though no contract was signed covering that operation On July 28, the Union and Cook & Brown reached agreement on a contract and that strike terminated The strike against Oshkosh RM continued current at the time of the hearing in this matter. D Respondents' Competitive Position Respondents adduced considerable testimony concerning the competitive position of Respondents in their normal markets, particularly in the ready-mix industry, the only area in which all three seem to have continued operations during the period of the lockout" with substitute help (Emphasis supplied ) 'Although it was stipulated that such requests were made , both Brown, president of Cook & Brown, and Meilahn, partner in both Oshkosh RM and Waupun , in answer to direct questions from Respondents ' counsel, denied that the employees had asked to return to work during the lockout 353 similar interests. According to Wesley Meilahn, the ready-mix industry is busiest in July, August, and September, estimating that business in this period is four times that of the winter and twice that of the spring period of the year Meilahn testified that his purpose in hiring temporary employees during the lockout was "To maintain some continuity of business so that we'd have some left, at least, when the labor dispute would end to try to get a contract at the earliest possible moment before we got into the busier time of the year," at which time Meilahn considered his businesses would be more vulnerable since "the union can strike whenever they please if there's no contract." It was testified that the normal delivery area for ready-mix concrete is within a radius of 10 miles of the plant Within this area, during the time in question, Meilahn stated that the competitors of Oshkosh RM (located I mile outside the city of Oshkosh) were Cook & Brown and Pipkorn, both located in the city, and Twin City Concrete, located west of Neenah, Wisconsin, about 12-14 miles from the Oshkosh plant. Of the four, the three plants located at the city of Oshkosh accounted for about two-thirds to three-quarters of the Oshkosh market.' Waupun, which is located about 22 miles from Oshkosh, apparently has no substantial competition, the next closest ready-mix plant being located about 20 miles from Waupun. Cook & Brown, which is also engaged in the business of supplying fuel oil (primarily for domestic consumption, though it supplies some industrial users), and in the fabrication (cutting and bending) of steel rods for building construction, asserts other additional competitive pressures in those areas However, it would appear that Cook & Brown's contracts to keep its customers supplied with fuel oil and to keep their burners in operation are chiefly operative in the winter months, beginning in September, and peaking in January and February, with a minimum demand in July In the summer months, its employees would be engaged in inspecting and cleaning customers' furnaces. It would appear from the list of employees prepared by the company, at the time of the lockout, Cook & Brown had three employees in this department Though the company has several competitors in the city of Oshkosh in the supplying of fuel oil, it seems to have none in the area of servicing heating equipment Cook & Brown supplies steel rods to contractors on the basis, normally, of bids upon the contractor's requirements and acceptance by the contractor. The company's principal competition in this field is in the city of Chicago, Illinois It was testified that at the time of the lockout, Cook & Brown had "many" contracts in this area, and if Cook & Brown were unable to fulfill these commitments, its customers would have difficluty in securing these materials necessary for their construction projects. This business, it was asserted, is not seasonal Henry J. Brown, president of Cook & Brown, testified as to their operations: Our purpose in hiring temporary employees was to sustain our business commitments in the most moderate manner that we could during the period of the lockout We have promises, business commitments to serve our customers These are very long-term,, and we felt the obligation to meet these commitments in some way. And also, to preserve our customers so when this 'Pipkorn 's share of the market must have been small at this time considering the small number of trucks and drivers with which it was operating Pipkorn went out of business on July 19, at the inception of the strike against Cook & Brown and Oshkosh RM 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dispute was resolved there would be work for our men on their return. Our customers are long-term customers, they come back to us on a regular basis This is true in each division of the company. There isn't a big turnover in customers The nature of our work, at least in the building industries, is one-time A job is done once and it's never repeated. But, the customer repeats He comes to you on the basis of service and if you don't give him service and you don't meet your commitments and your promises, he won't come back He's gone forever Vice President Egan of Cook & Brown asserted that the company could also not afford to lose a fuel oil customer because, due to the competition of other fuels and other suppliers, the loss tends to be permanent, rather than temporary 11 E. Analvsis and Discussion 1 The applicable legal precedents It is conceded that this case presents a problem of first impression, but, according to Respondents, one which is controlled by the opinions of the Supreme Court in American Ship Building, supra, and John Brown, supra, in which the Court added new dimensions to the employer's right to lock out his employees in aid of substantial legitimate business rights. Prior to the Court's decision in American Ship, it was the settled rule of the Board that in normal circumstances "an employer may not during bargaining negotiations either threaten to lock out or lock out his employees in aid of his bargaining position." See Quaker State Oil Refining Corporation, 121 NLRB 334, 337, enfd 270 F 2d 40 (C A 3), though the Board recognized that there were special circumstances in which an employer's right to protect his business against loss so overweighed the employees' right to engage in collective bargaining free from coercion by their employer, that a lockout might be justified Thus, the Board held in Quaker State 121 NLRB at 337, that "lockouts are permissable to safeguard against unusual operational problems or hazards or economic loss where there is reasonable ground for believing that a strike was threatened or imminent." The only other exception to the general rule prohibiting lockouts of employees because of their exercise of "Respondents, in their brief (p 6), assert , "The uncontradicted testimony of Meilahn and Brown established that the hiring and use of temporary employees to perform bargaining unit work during the lockout was not intended to affect the job availability or status of the regular locked out employees Nor was the hiring and use of the temporary employees motivated by hostility to the Union or designed as a reprisal against the employees for their affiliation with the Union Neither did such conduct have as an objective the undermining of the Union as the collective bargaining agent for the employees in the separate collective bargaining units " However, inasmuch as these asserted negations of purpose were never publicly expressed , so far as this record shows , and particularly not at the time of the lockout when their exposition would have been significant , the Trial Examiner considers that this testimony, in the nature of statements in self-interest , is of little value in determining Respondent's purpose, which may be better judged by the evidence of their conduct, and has given these statements no weight In particular it has been noted that the employees were never advised of these positions and could well infer from the notice of lockout that Respondents were seeking to undermine and weaken the bargaining efforts of the employees and their representative bargaining rights under the Act served to sanction the use of the lockout in a multiemployer bargaining unit as a response to a "whipsaw" strike against one of its members. See N L R B v Truck Drivers Local Union No 449, Teamsters (Buffalo Linen Supply Co ), 353 U S. 87, discussed further hereinafter. Thus, while prior to the decision in American Ship an employer might validly lock out his employees in a good-faith effort to protect property or an important legal right against a real and imminent threat of harm (usually deriving from some act of the union bargaining agent against the employer), there was no recognized legal right on the part of an employer to take the initiative and lock out his employees as a pressure device to force a settlement in collective bargaining favorable to the employer In American Ship, the Supreme Court held, at least in the situation there presented, that such an "offensive" lockout was not a violation of the Act In that case, the employer, American Ship Building, operated shipyards on the Great Lakes with "a highly seasonal business concentrated in the winter months when the freezing of the Great Lakes renders shipping impossible " (380 U S at 302.) Each of the five prior bargaining agreements between the employer and the unions representing the employees had been preceded by a strike. After extended negotiations for a new contract, during which American Ship Building expressed its apprehensions that the unions would call a strike as soon as a ship entered its repair yard, "or delay negotiations into the winter to increase strike leverage" (380 U S at 303-304), an impasse in in bargaining was reached, and the parties separated without a date for another meeting. Union proposals to extend the prior contract for 6 months of indefinitely were rejected by the employer because these proposals would permit work stoppages during the employer's peak season Shortly thereafter, the employer locked out its employees represented by the unions because of the unresolved labor dispute Negotiations between the parties resumed and approximately 2 months later a new contract was signed and the locked-out employees were recalled to work In the circumstances there presented, the Supreme Court held that "an employer violates neither Sec 8(a)(1) nor 8(a)(3) when, after a bargaining impasse has been reached, he temporarily shuts down his plant and lays off his employees for the sole purpose of bringing economic pressure to bear in support of his legitimate bargaining position " (380 U S at 318.) In coming to this conclusion, the Court stated in another place, "This is the only issue before us, and all that we decide," specifically disclaiming any "view whatever as to the consequences which would follow had the employer replaced his employees with permanent replacements or even temporary help." (380 U.S at 308 and fn 8.) As the Board later stated, in Darling and Company, 171 NLRB No. 95 In essence, the Court held [in American Ship] that a lockout of employees to support a bargaining position after an impasse in negotiations had been reached was not violative of the Act. In so concluding, the Court set forth this as the test of a lockout's legality: that assuming no motive to discourage union activity or to evade bargaining exists, the test is whether the lockout is "inherently so prejudicial to union interests and so devoid of significant economic justification that no specific evidence of intent . is required [referring to OSHKOSH READY-MIX CO. 380 U S. 300 at 311]'' On the same day that it decided American Ship, the Supreme Court also issued its opinion in N L R B v. John Brown, supra, which latter decision, when read together with American Ship, Respondents assert, is controlling in the present case Briefly, the facts in John Brown were as follows: five employers engaged in the operation of several food stores had "bargained successfully on a group basis for many years" with the union there involved. During bargaining in 1960, however, in order to divide the employers and play one off against the others, the union called a strike against one of the employers, Food Jet, Inc , only - referred to, for obvious reasons, as a "shipsaw strike " The other four employers in response thereto locked out their employees for the duration of the strike. However, when Food Jet thereafter during the strike reopened its operations using supervisors and some new temporary help, the other four employers also reopened their stores with new temporary help, supervisors, managerial personnel, and relatives of such personnel When a contract was reached with the union, all of the employers released their temporary help and restored the locked-out employees and the strikers to their jobs. The right of Food Jet to replace its striking employees, as a defensive measure to keep its business going, was conceded, under long-established legal principles. See N L R.B v. Mackay Radio & Telegraph Co, 304 U.S 333 Also, the right of the remaining four employers (which had been bargaining with the union in a multiemployer unit together with Food Jet), to lock out their employees in response to the whipsaw strike against Food Jet was not questioned Thus the Court stated, in John Brown, 380 U S. at 281-282- The Board and the Court of Appeals agreed that the case was to be decided in light of our decision in the so-called Buffalo Linen case, Labor Board v. Truck Drivers Union, 353 U.S 87. There we sustained the Board's finding that, in the absence of specific proof of unlawful motivation, the use of a lockout by members of a multiemployer bargaining unit in response to a whipsaw strike did not violate either Sec. 8(a)(1) or Sec 8(a)(3) We held that, although the lockout tended to impair the effectiveness of the whipsaw strike, the right to strike "is not so absolute as to deny self-help by employers when legitimate interests of employees and employers collide . . . The ultimate problem is the balancing of the conflicting legitimate interests." 353 U S. at 96 We concluded that the Board correctly balanced those interests in upholding the lockout, since it found that the nonstruck employers resorted to the lockout to preserve the multiemployer bargaining unit from the disintegration threatened by the whipsaw strike "In Darling and Company , supra, the Board stated that the doctrine of American Ship requires a "careful evaluation of all the surrounding circumstances," and in the circumstances present in Darling - including the fact that the parties had bargained in good faith, that the union there had threatened to strike at its convenience over a key issue which had been the subject of a previous lengthy strike, and that the history of previous strikes gave the employer there legitimate concern over the timing of any possible work stoppage - the Board held that the employer's lockout of employees prior to impasse in bargaining "was neither inherently prejudicial to union interests nor devoid of significant economic justification," and thus did not violate the Act The Board further stated that it would not set forth " any hard and fast rule for determining whether a particular lockout is lawful , and such determination will have to be made on a case-by-case basis " (fn 10 ) 355 However, it was the Board's contention that the facts in John Brown differed critically from Buffalo Linen because in John Brown the nonstruck employers had displaced their regular employees with temporary help when they reopened their operations, which the Board held inhibited the employees in the exercise of rights under the Act and thus violated Sections 8(a)(1) and (3) of the Act, even in the absence of a specific proof of improper motivation for such conduct The Court disagreed, stating that while "the Board need not inquire into employer motivation to support a finding of an unfair labor practice where the employer conduct is demonstrably destructive of employee rights and is not justified by the service of significant or important business ends . . in the setting of this whipsaw strike and Food Jet's continued operations, the respondent's lockout and their continued operations with the use of temporary replacements, viewed separately or as a single act, do not constitute such conduct " (380 U.S at 282-283.) The Court further stated (380 U.S at 284-285,286) In the circumstances of this case, we do not see how the continued operations of respondents and their use of temporary replacements any more imply hostile motivation, nor how they are inherently more destructive of employee rights, than is the lockout itself. Rather, the compelling inference is that this was all part and parcel of respondents' defensive measure to preserve the multiemployer group in the face of the shipsaw strike Since Food Jet legitimately continued business operations, it is only reasonable to regard respondents' action as evincing concern that the integrity of the employer group was threatened unless they also managed to stay open for business during the lockout. . . The Court of Appeals correctly pictured the respondents' dilemma in saying, "If . the struck employer does choose to operate with replacements and the other employers cannot replace after lockout, the economic advantage passes to the struck member, the non-struck members are deterred in exercising the defensive lockout, and the whipsaw strike . enjoys an almost inescapable prospect of success " 319 F.2d, at I I Clearly respondents' continued operations with the use of temporary replacements following the lockout was wholly consistent with a legitimate business purpose. ... It is no doubt true that the collective strength of the stores to resist [the whipsaw] strike is maintained, and even increased, when all stores stay open with temporary replacements. The pressures on the employees are necessarily greater when none of the union employees is working and the stores remain open. But these pressures are no more than the result of the Local's inability to make effective use of the whipsaw tactic. Moreover, these effects are no different from those that result from the legitimate use of any economic weapon by an employer. Continued operations with the use of temporary replacements may result in the failure of the whipsaw strike, but this does not mean that the employers' conduct is demonstrably so destructive of employee rights and so devoid of significant service to any legitimate business end that it cannot be tolerated consistently with the Act. Certainly then, in the absence of evidentiary findings of hostile motive, there is no support for the conclusion that respondents violated Sec 8 (a)(1). 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In holding that respondents' conduct in John Brown also did not violate Section 8(a)(3) of the Act, the Court similarly stated, in part (380 U S at 287, 288-289) We recognize that, analogous to the determination of unfair practices under Sec 8(a)(1), when an employer practice is inherently destructive of employee rights and is not justified by the service of important business ends, no specific evidence of intent to discourage union membership is necessary to establish a violation of Sec 8(a)(3) We agree with the Court of Appeals that respondents' conduct here clearly fits into [that] category, where actual subjective intent is determinative, and where the Board must find from evidence independent of the mere conduct involved that the conduct was primarily motivated by an antiunion animus. While the use of temporary nonunion personnel in preference to the locked-out union members is discriminatory, we think that any resulting tendency to discourage union membership is comparatively remote, and that this use of temporary personnel constitutes a measure reasonably adapted to the effectuation of a legitimate business end. Here discontent on the part of the Local's membership in all likelihood is attributable largely to the fact that the membership was locked out as the result of the Local's whipsaw strategem But the lockout itself is concededly within the rule of Buffalo Linen We think that the added dissatisfaction and resultant pressure on membership attributable to the fact that the nonstruck employers remain in business with temporary replacements is comparatively insubstantial .Not only was the prospect of discouragement of membership comparatively remote, but the respondents' attempt to remain open for business with the help of temporary replacements was a measure reasonable adapted to the achievement of a elgitimate end - preserving the integrity of the multiemployer bargaining unit. When the resulting harm to employee rights is thus comparatively slight, and a substantial and legitimate business end is served, the employers' conduct is prima facie lawful Under these circumstances the finding of an unfair labor practice under Sec 8(a)(3) requires a showing of improper subjective intent. The Supreme Court had occasion thereafter, in N L R B v Great Dane Trailers, Inc , 388 U.S 26, to reexamine the doctrines laid down in American Ship and John Brown, though in a situation not involving a lockout After reviewing American Ship, John Brown, and its prior decision in Erie Resistor Corp. v N L R.B, 373 U S 221, the Court stated (388 U.S. at 34). From this review of our recent decisions, several principles of controlling importance here can be distilled. First, if it can reasonable be concluded that the employer's discriminatory conduct was "inherently destructive" of important employee rights, no proof of an anti-union motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations. Second, if the adverse effect of the discriminatory conduct on employee rights is "comparatively slight," an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct Thus, in either situation , once it has been proved that the employer engaged in discriminatory conduct which could have adversely affected employee rights to xome extent , the burden is upon the employer to establish that he was motivated by legitimate objectives since proof of motivation is most accessible to him See also N L R B v. Fleetwood Trailor Co , Inc , 339 U.S. 375 2. Conclusions At the outset, it is perfectly clear, from the facts in this matter, that the Respondents in this case, unlike the employers in John Brown, did not constitute a true multiemployer bargaining unit In fact, the allegations of the complaint admitted by Respondents concede as much At most, Cook & Brown and Oshkosh RM were engaged in joint bargaining with the Union, with the Waupun contract to be negotiated after the others were settled However, such joint bargaining would not affect the separate units or the rights which the parties may derive from such units See, i.e., Pacific Coast Shipbuilders Association, 157 NLRB 384, 386-387. It may be that each of the Respondents, nevertheless, had a sufficient immediate self-interest in the bargaining relationship of each of the others with the Union, that each might be justified in taking some supportive action in aid of the other's bargaining, see Newspaper Drivers & Handlers' Local No 372 [Detoit Newspaper Publishers Association] v N L R B, 404 F 2d 1159 (C A. 6); cf David Friedland Painting Co , Inc , 158 NLRB 571, enfd 377 F 2d 983 (C A. 3), but it is not necessary to pass upon that here. The record and the cases just cited indicate that each of the Respondents had sufficient immediate interest in the bargaining to take appropriate and legitimate action in aid of the bargaining which was being conducted, in their own interest 11 The issue is whether the action taken, the employment and use of replacements to do the work of employees who had been locked out of their normal employment, constituted such appropriate and legitimate conduct, or contravened the rights of employees in violation of the Act. It is further quite evident,from the analysis of the cases cited in subparagraph 1, above, contrary to the positions of the General Counsel and the Respondents, that the legality of the Respondents' actions in this matter (or their illegality) cannot be determined simply as a matter of law, per se, wholly apart from the context in which such conduct occurred. Cf. Darling and Company, supra Thus, the Supreme Court and the Board have made it abundantly plain that "once it has been proved that the employer engaged in discriminatory conduct which . affected' employee rights to some extent," - clearly the situation in the pending matter - the burden shifts to the Respondents to justify its conduct. See Great Dane Trailers, supra at 34, see also Darling and Company, supra. This manifestly requires that the Board weigh the conflicting interests of the employees and the Respondents shown by the evidence. See John Brown, supra, Great Dane Trailers, supra, Fleetwood Trailers, supra." "There is no persuasive evidence to support the Union ' s contention raised by the Union in its brief that the purpose of Respondents was to compel the Union to consent to a multiemployer unit See Newspaper Drivers, Local 372 v N L R B, supra. fn 2 "Although the Court, in the course of disagreeing with the Board's conclusions in American Ship, also indicated some disapproval of the Board's balancing of interests there (see 380 U S at 317), in John Brown, decided the same day, the duty of the Board to accomodate these interests, OSHKOSH READY-MIX CO. 357 It is further evident from the fact that the Court in American Ship (with full knowledge of its contemporary decision in John Brown) specifically reserved decision "as to the consequences which would follow had the employer [American Ship Building] replaced his employees with temporary help" (380 U S at 308, fn 8), that the Court did not consider John Brown diapositive of the issue as a matter of law, apart from a consideration of the impact of such action upon the employees' rights and of the importance of Respondents' justification for its conduct. We turn then to a consideration of these matters a The effect of Respondents ' conduct on the employees ' rights The Trial Examiner had occasion recently, in a decision adopted by the Board in The Ruberoid Company, 167 NLRB No 144, to consider a very closely related problem. It was there stated, in part. . it would appear, under American Ship, the question to be resolved is whether, in the absence of any other evidence of illegal motivation, the "actions taken serve legitimate business interests in some significant fashion, even though the act committed may tend to discourage union membership " (380 U S. at 311.) While the Supreme Court has made clear in American Ship, at pp. 317-318, quoting from N L R B v Insurance Agents' International Union, 361 U S. 447, that the Board is not warranted in becoming involved in "the substantive aspect of the bargaining process" by "functioning as an arbiter of the sort of economic weapons the parties may use in seeking acceptance of their bargaining demands," it is also clear that not all economic weapons seriously affecting employee rights may be employed with impunity merely because employed in aid of the employer's bargaining position See N L R B v Erie Resistor Corp , 373 U S 221' It may well be argued that an employer who has locked out his employees in aid of a bargaining position does not at the same time retain a significant or legitimate interest in remaining in operation through the employment of replacements for employees thus deprived of work or by the diversion of their work to other facilities in shutting down in aid of his bargaining position the employer exercises his option to accelerate an anticipated work stoppage to a time more favorable to himself and less favorable to the employees, and the employees may not complain that "the work stoppage which would been the object of the strike has in fact occurred." (380 U S at 310 ) However, the exercise of the option to shut down production, or cease services, in good-faith anticipation of offensive action by the employees, or their representative, would seem hardly compatible with the concurrent exercise of an alleged good-faith option not to close at all, but to continue in operation under another guise The two actions are antithetical This may be pointed up by a comparison with the situation which obtains when an employer uses subject to review by the courts, was several times restated (380 U S at 282, 287-288, 290-292 ) Further, in the most recent case of N LR B v Fleetwood Trailers, supra, the Court stated (389 U S at 378), citing Great Dane , supra, and Erie Resistor. supra, that "tilt is the primary responsibility of the Board and not of the courts `to strike the proper balance between the asserted business justifications and the invasion of employee rights in light of the Act and its policy' " replacements, or other legitimate means, to continue in operation after a strike by his employees In such case the employer's efforts to remain in operation are not, as such, necessarily destructive of the employees' rights to free collective bargaining or the benefits of collective action, or to the union's capacity to responsibly and meaningfully represent the employees. In a strike against an employer, the employees, usually through their representative, constitute the protagonist in the dispute, and to the extent their rights may be destroyed, this is but a foreseeable consequence of their own actions Because the employer's action is thus defensive, in response to the employees' own concerted activity, it cannot be said, in the usual case, to be designed necessarily to destroy the exercise of the employees, rights or the capacity of the union to represent them.'" 'Indeed it has been suggested by thoughtful writers on the problem that in American Ship and Insurance Agents, the Supreme Court adopted a long held academic view that the Board should not attempt to determine what economic tactics should be used by the negotiators as long as the parties are engaged in a good-faith effort to reach an agreement See, e g , Schatzki , The Employer's Unilateral Act. supra [44 Texas L Rev 470], 485, Oberer, Lockouts and the Law , supra [51 Cornell L Q ], 193, note, The Supreme Court , 1964 Term , 79 Harvard L R 56, 195 Compare, however , N L R B v Benne Katz, d/b/a Williamsburg Steel Products Co, 369 US 736, and Erie Resistor, supra, both distinguishing Insurance Agents , in which the Board's decisions in protection of employee rights under the Act were affirmed, even in the absence of evidence of subjective bad faith or animus on the part of the employer "For an instance in which the Board and the Supreme Court held that operation of the employer' s business, or at least an integral part of its operation , during a strike was designed to destroy the exercise of employees' rights, and thus violated the Act, see Erie Resistor, supra The Court's decision in John Brown is clearly consistent with the analysis set forth Thus the employers' action in John Brown in hiring temporary replacements for locked-out employees and using supervisory personnel to continue in operation was essentially a responsive action designed to counter the thrust of the Union, which the Court put on the same plane as the clearly valid action of the struck employer in replacing his striking employees and the right of the employers to initially lock out their employees in defense against the whipsaw strike" The Court further indicated at several points in its decision in John Brown that such harm as the employees might incur as a result of their replacement by temporary employees was but a foreseeable consequence of their own action, which the employees had within their own power to control by ceasing their strike against Food Jet.15 Therefore, as noted above, where "the employer's action is thus defensive, in response to the employees' own concerted activity, it cannot be said . . to be designed necessarily to destroy the exercise of the employees' rights or the capacity of the union to represent them " See Ruberoid, supra "The ourt,inter alia, referred to "Respondents ' continued operations" and "their use of temporary replacements" as a "defensive measure to preserve the multiemployer group in the face of the whipsaw strike," which the Court considered not "inherently more destructive of employee rights, than the lockout itself " (380 U S at 284 ) "Thus the Court stated (380 U S at 286), "The pressures on employees are necessarily greater when none of the union employees is working and the stores remain open But these pressures are no more than the result of the Local's inability to make effective use of the whipsaw tactic " (Emphasis supplied ) At another place, the Court noted that such discontent on the part of the union' s membership as occurred "is attributable largely to the fact that the membership was locked out as a result of the Local's whipsaw strategem" (380 U S at 288), and noted that having created the situation they were in, the employees, by their "control 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, where the employer, as here, locks out his employees with the purpose of forcing them to accede to his terms and at the same time is able to demonstrate, by continued operation through other employees, that resistance to the employer's terms, whatever they might be, is unlikely of success, if not hopeless, and reemployment can be obtained only by concession to the employer's terms, the necessary, if not the almost inevitable, tendency of the employer's conduct would be capitulation Thus if the employer not only may decide if and when his employees shall be deprived of work, but at the same time replace those employees and continue in operation, making capitulation rather than bargaining the option presented, such action might well be said to have the tendency„ which the Court found lacking in American Ship, to "necessarily destroy the unions' capacity for effective and responsible representation and be "demonstrably so destructive of collective bargaining" (380 U.S. at 309) as to carry its own indicia of illegal motivation in violation of the Act. Indeed, the employer's capacity for achieving this result might well be limited only by the available labor market. It is suggested in the present case, however, that the Respondents were unable to inflict such harm on the Union, were themselves forced to rescind their lockout, and that the Union, notwithstanding the lockout, retained sufficient strength to immediately strike two of the Respondents, Oshkosh RM and Cook & Brown However, it is manifest that the purpose of Respondents' conduct was to force a capitulation to Respondents' terms by depriving the employees of their livelihood for an indefinite period, thus penalizing them for their resistance to those terms, and tending to weaken and divide their bargaining power It seems evident that this is precisely what occurred at Waupun, even though the Union has not there agreed to a contract. Even at Oshkosh RM and Cook & Brown, it may be noted that the natural tendency of Respondents' conduct resulted in attrition of Union strength through members leaving permanently for other work Thus, almost one-half of the regular complement at Oshkosh RM (three out of eight) failed to return at the end of the lockout, rather clearly indicating the effect that may be expected in such situations, particularly where, as seems to have been the case at Oshkosh RM and Waupun, no long-established background of stable bargaining relationships have been established. 1I In any event, assuming that the Respondents here were attempting to secure their aims in collective bargaining by discrimination in employment inflicting a maximum of union policy, could end the dispute and terminate the lockout at any time" by conceding to the employers and returning to work (380 U S at 289 ) "The Respondents seem to suggest that the Union may recoup its strength through the operation of union-shop clauses in future bargaining agreements However, in terms of the actualities of collective bargaining, this may be open to serious question Where, as here, the employer's tactics are purposely designed to create attrition in the strength of union support, and thus its capacity to effectively represent the employees, and, at the same time , to create in the employees a lack of confidence in the union's capability to represent them successfully , the natural tendency of such conduct will be destructive of the Union's representative capacity Under these circumstances, assuming that the employer has the power to carry out his purposes, the union's ability to bargain for an effective union shop, itself, may erode These matters do not occur in a vacuum, both employees and the employer are sensitive to shifts in union bargaining power not only is the union's bargaining strength dependent ultimately upon the employees ' confidence in that strength , but also the employer's willingness to make meaningful concessions , in the last analysis, is substantially affected by his appraisal of employee support for the union amount of economic injury upon the employees, which seems beyond question , the determination of whether these actions violated the Act does not depend on whether Respondents were successful Specific proof of the successful effect of the Respondents' discrimination is not required "It is common experience that the desire of employees" with respect to unionization or collective activity "is raised or lowered by the advantages," or disadvantages , "thought to be attained by such action." And the Board may reasonably infer such effect from the discrimination . See The Radio Officers' Union v NLRB,347US 17,51 b Respondents' purpose in replacing its employees It seems manifest to the Trial Examiner that the critical inquiry in this matter, the pivot upon which the decision must inevitably turn, concerns Respondents' justification for the conduct which is the subject of attack here There can be little question that the necessary tendency of Respondents' conduct was to coerce the employees in their exercise of their right under Section 7 of the Act to bargain collectively through their selected representatives and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection However, it is clear from the teaching of the cases considered above (see subparagraph 1, supra), that where, as here, such conduct occurs in a context which reveals no other specific evidence of hostility to the Union, it becomes necessary to consider the employer's asserted reasons for his conduct which may effectively counteract the normal inference of invidious hostility inherent in the conduct itself As in any other case, where it is shown that the employer has inflicted deliberate harm on the employees for their exercise of rights under the Act, in the absence of proof of sufficient justification for such conduct, a violation of the Act is made out. As the Supreme Court advised in N L R B v. Great Dane Trailers, supra (388 U.S at 34), where it is shown that employee rights have been invaded by employer conduct even though the invasion may have been "comparatively slight" - it becomes incumbent upon the employer to "come forward with evidence of legitimate and substantial business justifications for the conduct." Thus also the Court, in John Brown, in rejecting an implication of "hostile motivation" in the use of temporary replacements for the lock-out employees there, noted "the compelling inference . that this was all part and parcel of respondents' defensive measure to preserve the multiemployer group in the face of the whipsaw strike" (380 U.S at 284, emphasis supplied), which, at another place, the Court referred to as "a measure reasonably adapted to the achievement of a legitimate end - preserving the integrity of the multiemployer bargaining unit," and concluded that such conduct would be "prima facie lawful" "[w]hen the resulting harm to employee rights is thus comparatively slight, and a substantial and legitimate business end is served . . (380 U S at 289.) Similarly, in both American Ship, supra, and in Darling and Company, supra, the Court and the Board, respectively, took particular note of, and largely relied upon, the fact that there was a substantial basis for the employer's conduct in each case in reaction to conduct of the union involved, which gave the employer reasonable apprehension that the union would take hostile action against the employer's substantial economic interests In the instant case, as we have noted, there is no OSHKOSH READY-MIX CO. substantial evidence of any affirmative or overt act on the part of the Union which impelled Respondents' conduct Moreover, Respondents assert no special situation, beyond their normal business operations, in justification of their -conduct Thus, although all three Respondents could apparently expect a substantial increase in their ready-mix business in the months ahead, there is no indication that their situation differed in any way from that in previous years in which the parties were apparently able to resolve their problems in collective bargaining without a work stoppage, either by way of lockout or strike Nor on the basis of this record can it be found that the Respondents faced any serious or unusual competitive threat from other firms in the ready-mix business, either in 1968 or in any previous year. - In the case of the other operations of Cook & Brown, it is not apparent that Respondent would have been substantially more inconvenienced by a strike in the future, if that had occurred, than it was when it voluntarily created a work stoppage of its regular employees by locking them out In fact, Respondents' business problems here advanced in justification of their conduct in this matter do not appear to differ materially from those common to specialty contractors in the construction industry generally and to other employers who are busier at some seasons of the year and likewise have contractual commitments to meet. Respondents further argue, in effect, that they were justified in their actions by the fact that their contracts had expired and the Union was free to strike. This, however, is not an unusual occurrence in collective bargaining, not heretofore thought, standing alone, to justify discrimination against employees because they, or their representative, were resisting the employer's contract position. Moreover, even if the doctrine of American Ship may permit the employer, as a matter of law, to lock out his employees at the termination of the bargaining agreement, without any other justification (reminiscent of the labor cry of "no contract, no work," not so frequently heard today as in other years when negotiations in the coal industry were more turbulent), a matter which it is unnecessary to pass upon here, the analysis which we have made hereinabove would require some more substantial justification for that additional, significant discrimination against such employees inherent in giving their work to others, after shutting them out from employment. Respondents however contend, in effect, that the Board is without authority to pass upon the sufficiency of the business reasons advanced to justify their conduct, asserting that "the Board does not possess the general authority to act as an arbiter of the economic weapons available to the parties in collective bargaining," citing American Ship and John Brown, supra However, while the Court, in John Brown, held that the employers' defensive action there could not be invalidated by the Board, the Court also confirmed the authority of the Board to weigh and consider the relevant factors in determining the legality of the conduct in question See also N L.R.B v. Great Dane Trailers, supra; N.L R B v. Fleetwood Trailers, supra Moreover, as has been previously noted, the decisions of the Supreme Court also make clear that not all economic injuries which may be inflicted upon employees in aid of an employer's bargaining position, or for the purpose of assisting the employer to maintain his business operation, are necessarily legitimate "economic weapons" because used in a collective-bargaining dispute. Thus, the Court, in N L R B v Erie Resistor Corp , supra, affirmed the holding of the Board that the employer there could 359 not, even in the absence of other proof of hostility to the union, adversely affect the seniority rights of employees on strike over the terms of a collective-bargaining contract, even though the employer claimed that such action was necessary to the continued operation of its business during the work stoppage " See also, Christiansen and Svanoe , Motive and Intent in the Commission of Unfair Labor Practices The Supreme Court and the Fictive Formality , 77 Yale L.J 1269, 1299-00 3. Summary We are not here concerned with the balancing of bargaining power which the Supreme Court in American Ship and John Brown instructed the Board to eschew We are confronted with conduct tending necessarily to coerce employees in the exercise of their rights under the Act, to discourage membership in and activities on behalf of the Union, and to prevent free collective bargaining in accordance with the purposes of the Act. Where employees are so injured in the exercise of their rights guaranteed by the Act, such conduct "carrie[s] its own indicia of [illegal] intent and . . is barred by the Act unless saved from illegality by an overriding business purpose justifying the invasion of union rights." See Erie Resistor, supra, 373 U.S. at 231. However, no such overriding purpose justifying Respondents' conduct has here been shown. In summary, therefore, it is found, on the basis of the above and the record as a whole, that Respondents, and each of them, by employing and using replacements to perform the work of employees whom Respondents had locked out, in the circumstances of this case, seriously interfered with, restrained, and coerced their employees in the exercise of rights under the Act, and discouraged membership in labor organizations by discrimination against those employees in repect to their hire or tenure of employment, without significant, substantial, legitimate justification, in violation of Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW 1 The Respondents , and each of them , are engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondents , and each of them, have engaged in and are engaging in unfair labor practices in violation of Sections 8(a)(1) and (3) of the Act, which unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY It having been found that the Respondents, and each of them, engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, it will be recommended that the Respondents, and each of them, cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. Although it is conceded by the General Counsel, and it is herein found, that the lockout of employees in this matter was valid at its inception, it is further clear and it "it appears from the Court's decision, indeed , that the employer's actions there were undertaken "under intense competition and subject to insistent demands from its customers to maintain deliveries " (373 U S at 222-223 1 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is found that the Respondents by employing temporary replacements converted this situation into an illegal discrimination against the employees in regard to their hire and tenure which should be remedied by restoring the employees to the status which they would have enjoyed but for these illegal acts Since it appears that all of the employees originally locked out were offered reinstatement on or about July 17, it will be recommended that the Respondents, and employing temporary replacements converted this situation into an illegal discrimination against the employees in regard to their hire and tenure which should be remedied by restoring the employees to the status which which they would have enjoyed but for these illegal acts Since it appears that all of the employees originally locked out were offered reinstatement on or about July 17, it will be recommended that the each of them, shall, to the extent not previously done, restore the employees locked out on or about May 2, 1968, to their seniority and other rights and privileges, and make them whole for any loss of earnings or other Respondents, and each of them, shall, to the extent not previously done, restore the employees locked out on or about May 2, 1968, to their seniority and other rights and privileges, and make them whole for any loss benefits which they may have suffered by reason of the discrimination against them from on or about May 2, 1968, to on or about July 17, 1968, less interim earnings, and in a manner consistent with Board policy set out in F W Woolworth Company, 90 NLRB 289, and Crossett Lumber Company, 8 NLRB 440, to which shall be added interest at the rate of 6 percent per annum as prescribed Isis Plumbing & Heating Co., 138 NLRB 716 RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that Respondents, Inland Trucking Co and Wesley Meilahn Co-Partners d/b/a Oshkosh Ready-Mix Co, Oshkosh, Wisconsin, Cook & Brown Lime Co., Oshkosh, Wisconsin, and Inland Trucking Co and Wesley Meilahn Co-Partners d/b/a Waupun Ready-Mix, Waupun, Wisconsin, and each of them, their officers, partners, agents, successors, and assigns, shall: I Cease and desist from: (a) Discouraging membership in General Teamsters, Warehouse and Dairy Employees, Local Union No. 126, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization by discrimination in respect to the hire or tenure of their employees (b) In any like or related manner interfering with, restraining, or coercing their employees in the exercise of their right to self-organizations, to form labor organizations, to join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act 2 Take the following affirmative action which it is found will effectuate the purposes of the Act. (a) Reinstate and make whole all employees locked out by the Respondents, and each of them, for the period from May 2, 1968, to July 17, 1968, for any loss of pay, benefits, or privileges they may have suffered by reason of the discrimination against them, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at each of their plants involved herein copies of the attached notice marked "Appendix,"' 8 each of which shall be signed by an officer or partner of the Respondent operating the plant in which said notice is posted. Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by Respondents' representative, shall be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 30, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith." "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondents have taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that- Under the terms of the labor laws of the United States Government, you have the right to - Organize yourselves, or form, join, or help unions Bargain for working conditions through a representative freely chosen by a majority of the eligible workers in our operations, without interference, coercion, and restraint from the company Act together for the purposes of bargaining for working conditions or for other mutual aid or protection of your working conditions. Refuse to do any or all of these things, except as limited by law WE WILL NOT interfere with your right to do these things, or engage in such activities which have been guaranteed to you by law. WE WILL NOT shut you out from employment, or deprive you of work in any way and give your work to others because you have joined or helped Teamsters Local 126, or any other union, or have done any of the things or have engaged in any activities which the law states you have the right to do, as set forth above. OSHKOSH READY-MIX CO. 361 WE WILL make whole all of the employees whom we locked out on or after May 2, 1968, for any loss of pay, benefits, or privileges they may have suffered by reason of the lockout, with interest, in accordance with the decision of the National Labor Relations Board, or its Trial Examiner. INLAND TRUCKING CO This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Second Floor, Commerce Building, 744 Fourth Street, Milwaukee, Dated By Wisconsin 53203, Telephone 414-272-8600, Extension (Employer) (Representative ) (Title) 3861