Ottawa Silica Co.

OTTAWA SILICA COMPANY 449 Ottawa Silica Company and Cylinder Gas, Chemical, Petroleum, Auto Service and Accessory Drivers, Maintenance, Mechanics, Helpers and Inside Em- ployees Local No. 283, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 7-CA-8018(1) and 7-CA-8018(3) June 13, 1972 DECISION AND ORDER On May 28, 1971, Trial Examiner Max Rosenburg issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. The Board granted oral argument which was held on October 4, 1971, with the parties participating therein. The Board has considered the record and the Trial Examiner's Decision, brief, and oral argument and has decided to affirm the Trial Examiner's rulings, findings, and conclusions only to the extent consist- ent herewith. The Trial Examiner found that Respondent violat- ed Section 8(a)(1) and (3) of the Act when, on June 1, 1970, it locked out its employees at its Rockwood, Michigan, plant and continued to operate that facility with temporary replacements. He further found that Respondent violated Section 8(a)(l), (3), and (5) by its unilateral refusal to award holiday and vacation pay to the locked-out employees until after the parties had completed negotiations on a new collective-bargaining agreement. The Trial Examiner dismissed that portion of the complaint which alleged that Respondent violated Section 8(a)(1), (3), and (5) by unilaterally deviating from the terms of a recently expired contract with the Union in with- holding guaranteed workweek pay. A majority of the Board disagrees with the Trial Examiner's lockout findings' and the Board unanimously adopts his findings as to the withholding of guaranteed work- week pay and holiday and vacation pay.2 With respect to the lockout and continued opera- tion with replacements, in reliance on the Board's decision in Inland Trucking Co. and Wesley Meilahm Co-Partners d/b/a Oshkosh Ready-Mix Co., 179 NLRB 350, enfd. 440 F.2d (C.A. 7), The Trial Examiner reasoned that by utilizing temporary labor to perform the duties of employees whom it had locked out Respondent interfered with, restrained, and coerced unit employees in the exercise of rights guaranteed by Section 7 of the Act, and concomi- tantly discouraged membership in the Union by discrimination against them in respect to their hire and tenure of employment, without legitimate and substantial justification, in violation of Section 8(a)(1) and (3) of the Act. In so holding, the Trial Examiner rejected the General Counsel' s initial thesis that Respondent's lockout, when viewed in the light of continued operations by the utilization of temporary replacements, inherently destroyed impor- tant rights of its employees and constituted a per se violation of Section 8(a)(1) and (3). He found, rather, that the Employer, having somewhat intruded on its employees' Section 7 rights, had failed to adduce sufficient evidence to establish the economic legiti- macy of the lockout. In the light of Respondent's acknowledgement that its lockout, coupled with the use of temporary replacements, caused "some" impingement on rights guaranteed to unit employees under the Act, the Trial Examiner considered that the only inquiry remaining for him was whether Respondent had carried its burden of proof that it was motivated by legitimate objectives. He conclud- ed that the Respondent had not carried its burden in this regard. For the reasons hereinafter indicated, we are unable to agree with the Trial Examiner's disposition of the lockout issue posed in this case. We start with the decision of the United States Supreme Court in American Ship Building Co. v. N.L.R.B., 380 U.S. 300 (1965), in which the Court made clear that an employer violates neither Section 8(a)(1) nor Section 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. The Court pointed out that the lockout is not "one of those acts which are demonstrably so destructive of collective bar- gaining that the Board need not inquire into employer motivation, as might be the case, for example, if an employer permanently discharged his unionized staff and replaced them with employees known to be possessed of a violent anti-union animus." 380 U.S. at 309. The Court observed that the lockout may well dissuade employees from adhering to the position which they initially adopted in the bargaining, but the right to bargain collectively does not entail any "right" to insist on one's position free from economic disadvantage. It is true, said the Court, that recognition of the lockout deprives the union of exclusive control of the timing and duration of work stoppages calculated to influence the result of collective-bargaining negotiations, but there is nothing in the statute which would imply that the right to strike "carries with it" the right exclusively to , Chairman Miller sets forth his reasons therefor in a separate vacation and holiday pay, we adopt his reasoning respecting the latter only concurrence. to the extent that it assumes the lawfulness of the lockout. 2 While we agree with the Trial Examiner in finding the violations as to 197 NLRB No. 53 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD determine the timing and duration of all work stoppages. The Court could not see the employer's use of a lockout solely in support of a legitimate bargaining position as being in any way inconsistent with the right to bargain collectively or with the right to strike. With respect to Section 8(a)(3) of the Act, the Supreme Court, in American Ship Building, observed that where the purpose and effect of the lockout are only to bring pressure upon the union to modify its demands its use does not carry with it any necessary implication that the employer acted to discourage union membership or otherwise to discriminate against union members as such. Concluding that it does not appear that the natural tendency of the lockout is severely to discourage union membership while serving no significant employer interest, the Court rejected the Board's finding of a violation of Section 8(a)(1) and (3).3 Prior to American Ship Building, in N.L.R.B. v. Truck Drivers Local Union No. 449 (Buffalo Linen), 353 U.S. 87 ,(1957), the Supreme Court had held that the right to strike was not so absolute U.S. 87 (1957), the Supreme Court had held that the right to strike was not so absolute as to deny self-help by employers when legitimate interest of employees and employers collided, and that the ultimate problem was the balancing of the conflicting legitimate interest. 353 U.S. at 96. In N.L.R.B. v. Brown, et al., d/b/a Brown Food Stores, 380 U.S. 278 (1965), the Supreme Court reaffirmed its views stated in American Ship Building, which was decided on the same day, that a lockout is not an unfair labor practice simply because it is used by an employer to bring pressure to bear in support of his bargaining position after an impasse in bargaining negotiations has been reached. Having so held, the Court stated that it did not see how the continued operations of the employers there involved and their use of temporary replacements implied hostile motivations any more than the lockout itself; nor could the Court see how they were inherently more destructive of employee rights. The Supreme Court expressly rejected the Board's argument in Brown Food Stores that justification for the inference of hostile motivation appeared in the 3 In American Ship Building the Supreme Court made clear that, contrary to the views expressed in a concurring opinion filed in the case, it intimated no view whatever as to the consequences which would follow had the employer in that case replaced its employees with permanent replacements or even temporary help 380 U S at 308, In 8 4 Prior Board decisions have permitted lockouts as means of exerting pressure on a union during collective bargaining For example, lockouts have been held justified when used as "defensive" measures to preserve the economic interest of the employer, such as the prevention of business losses which could result from a union striking suddenly and unexpectedly See, e g, Betts Cadillac Olds, Inc, 96 NLRB 268, 286 (1951) (lockout to avoid injury to customer relations caused by a strike occurring while unfinished work was in the shop-"The pedestrian need not wait to be struck before respondents' use of temporary employees rather than some of the regular employees. The Court stated: . . . 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 de- structive 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 §8( a)(1). [380 U.S. at 286.] Similarly, the Court concluded that respondents did not violate Section 8(a)(3), observing that under that section both discrimination and a resulting discouragement of union membership were necessary. but the added element of unlawful intent was also required. The Court noted that in Buffalo Linen the employers treated the locked-out employees less favorably because of their union membership, and that this may have tended to discourage continued membership, but the Court rejected the notion that the use of the lockout violated the statute. It held that the discriminatory act was not by itself unlawful unless intended to prejudice the employees' position because of their membership in the union; some element of union animus was necessary.4 While the use of temporary nonunion personnel in preference to the locked-out union members was discriminatory, the Court observed that any resulting tendency to discourage union membership was comparatively remote, and that the use of temporary personnel constituted a measure reasonably adapted to the effectuation of a legitimate business end. "When the resulting harm to employee rights is thus compara- tively slight, and a substantial and legitimate busi- ness end is served, the employers' conduct is prima facie lawful." 380 U.S. at 289. Our analysis of the Supreme Court decisions in American Ship Building and Brown Food Stores leads us to the conclusion that in the instant case Respondent did not violate Section 8(a)(1) and (3) by leaping for the curb."), International Shoe Company, 93 NLRB 907 (1951) (lockout to avoid disruption of general operations caused by unexpected intermittent work stoppages in individual departments); Duluth Bottling Association, 48 NLRB 1335 (1943) (lockout to avoid spoilage of materials by a sudden strike) As above noted, in Buffalo Linen the Supreme Court found proper a lockout when used by nonstruck members of a multiemployer bargaining unit in response to a "whipsaw" strike action against another member In such situations, the employers were deemed to have a legitimate interest in the preservation of the bargaining unit, and, as noted in Brown Food Stores, a lockout with temporary replacements was sanctioned by the Supreme Court And, as shown above, an "offensive" lockout, intended merely to exert pressure on a union in the bargaining process, was approved by the Supreme Court in American Ship Building OTTAWA SILICA COMPANY locking out its employees and continuing to operate with temporary replacements.5 We are not persuaded by the record before us that Respondent's conduct did not constitute "a measure reasonably adapted to the effectuation of a legitimate business end." As in Brown Food Stores, the replacements were expressly used for the duration of the labor dispute only; thus, the displaced employees could not have looked upon the replacements as threatening their jobs. At most, the Union could be forced to capitulate and return its members to work on terms less desirable than hoped for. The membership, through its control of union policy, could end the' dispute and terminate the lockout at any time by agreeing to Respondent's terms and returning to work on a regular basis. It would appear that union members would have nothing to gain, and much to lose, by quitting the union. Under all these circumstances, we cannot say that Respondent's conduct had any great tendency to discourage union membership. As stated by the Supreme Court in Brown Food Stores, not only was the prospect of discouragement of membership comparatively remote, but the attempt to remain open for business with the help of temporary replacements was a measure reasonably adapted to the achievement of a legitimate end. We see nothing in Respondent's conduct which would warrant a conclusion that it was motivated by any antiunion considerations or that it was intended to discourage the exercise of protected employee rights. We view the lockout here as having been used solely in support of Respondent's legitimate bargain- ing position. In such circumstances, it was not inconsistent with the right to bargain collectively nor with the right to strike. Having concluded that the resulting harm to employee rights by the lockout and continued operation by use of temporary replace- ments was comparatively slight, and being of the view that there is insufficient evidence of improper motivation, we hold that Respondent did not violate Section 8(a)(1) and (3).6 Our evaluation of the principles governing employ- er lockouts coupled with continued operation with temporary replacements convinces us that the result reached in Inland- Trucking does not give proper recognition to legitimate employer interests, devoid 5 We do not perceive anything in the language of the Supreme Court in Brown Food Stores to the effect that continued operation by use of the employers' own nonunit personnel is to be treated differently from the use of newly hired temporary replacement Indeed, as we note above, the Court rejected the Board's argument that justification for an inference of hostile motivation appeared in the employers' use of "temporary" employees rather than the use of some of the "regular" employees 380 U S at 285 6 The Supreme Court's decision in N L R B v Great Dane Trailers, Inc, 388 U S 26 (1967), does not constitute a dilution of the principles announced in American Ship Building and Brown Food Stores Indeed, there the Court cites with approval its decisions in American Ship Building and Brown Food Stores 388 U.S at 34 451 of any motive to discourage the exercise of protected employee rights, which was the underlying factor in the Supreme Court's reasoning in American Ship Building. If we are to follow the logic of American Ship Building and Brown Food Stores, we are precluded from inferring antiunion motivation solely from the application of economic pressure during the bargaining dispute.? We see nothing more than that here and, accordingly, we decline to apply the holding in Inland Trucking to the facts of this case.8 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner as modified below and orders that Respondent, Ottawa Silica Compa- ny, Rockwood, Michigan, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order as modified: Substitute the attached notice for that of the Trial Examiner. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein. CHAIRMAN MILLER, concurring separately: I concur in the result reached by Members Kennedy and Penello, but wish to make clear that I do so only because (1) Respondent utilized only its own nonunit personnel in carrying on its operations during the lockout, (2) the Union had refused to provide any assurance of continued operations, and there was therefore reason to believe that a strike was imminent, and (3) there was here some evidence, although perhaps not totally conclusive evidence, of a bona fide business justification for Respondent's actions. The combination of all of these circumstances leads me to find no violation in Respondent's carrying on limited operation during the lockout through the use of nonunit personnel. I wish particularly to note that I do not intend my conclusions in this case to be understood as sanctioning the utilization of temporary replace- ments, particularly when hired from the outside, in all permissible lockout situations. Thus to the extent 7 See Lockouts-Employers' Lockout with Temporary Replacements Is An Unfair Labor Practice, 85 Harv L Rev. 680. 8 We do not view the fact that in Brown Food Stores a whipsaw strike was involved as requiring a conclusion contrary to that reached by the majority here or militating against a finding that Sec 8(a)(l) and (3) is not violated when an employer locks out his employees and continues operation by temporary replacements to bring pressure to bear in support of his bargaining position after an impasse in negotiations has been reached in circumstances other than a whipsaw stoke We are unable to perceive anything in Brown Food Stores as limiting its holding only to whipsaw strikes 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that my colleagues intend, by their readiness to overrule Inland Trucking Co. and Wesley Meilahm Co-Partners d/b/a Oshkosh Ready-Mix Co., 179 NLRB 350, enfd. 440 F.2d 562 (C.A. 6, 1971), cert. denied 404 U.S. 858 (1971), to indicate a contrary view, I would dissociate myself from their rationale. In addition, I agree with the Trial Examiner's findings as to the withholding of guaranteed work- week pay and vacation and holiday pay. MEMBERS FANNING AND JENKINS, concurring in part and dissenting in part: Contrary to our three colleagues, we would, for reasons given below, affirm the Trial Examiner's conclusion that Respondent violated Section 8(a)(1) and (3) of the Act by locking out its regular employees on June 1, 1970,9 and using temporary replacements partially to continue operation of its Rockwood, Michigan, plant.10 On March 16, George Vitale, the Union's vice president and chief negotiator, advised Charles Huestis, Respondent's industrial relations manager, that the Union wished to renegotiate the provisions of their agreement which was to expire on May 31. In the course of the bargaining sessions which took place in the latter half of May, the Union threatened to strike. The final bargaining session began on May 31 and ended in an impasse on "all outstanding issues" about 1:30 a.m. on June 1. Respondent's supervisors then notified the employees who had reported for the night shift that their services would not be needed and that the 72 production and maintenance employees would be locked out until further notice. However, as indicated above, Respon- dent, which produces silica sand for sale 'to foundries and glass container manufacturers, continued to serve the latter by using 23 temporary replacements drawn from supervisory and sales personnel at the Rockwood facility and Respondent's Ottawa, Illi- nois, plant. During the month of May, Eldon B. Zwayer, director of purchasing for Federal Glass Company, a major customer whose total requirements had been met since 1950 by Respondent, "checked" with Terrance V. Davis, Respondent's division manager, about the status of Respondent's "labor negotia- tions" with the Union. According to Zwayer, who testified on behalf of Respondent, Davis and he telephoned each other and "discussed what the situation was and what the possibilities were and what they could do to take care of us in the event there was any problem during the negotiations." " In their first conversation concerning a possible work stoppage, Davis stated he was not certain what might 9 Unless otherwise indicated, all dates below are for the year 1970. 10 Our colleagues adopt the Trial Examiner' s dismissal of the allegations concerning the withholding of guaranteed workweek pay and his finding happen in the negotiations, but Davis assured Zwayer that "in any event, they [Respondent] would be able t o continue ... to supply" Federal Glass. Davis repeated this assurance in subsequent conver- sations, and late in May told Zwayer that "in the event there was a work stoppage or a strike they [Respondent] would continue to operate with super- visory employees and would ship to us.- Satisfied with these assurances, Zwayer did not then seek an alternate supply of silica sand because "we felt we had an adequate supply [from] a supplier who had always supplied us very well with the quality we wanted ....- The issue posed in the instant case was given judicial attention and decided for the first time in Inland Trucking, supra, by the Court of Appeals for the Seventh Circuit. We subscribe to the legal principles enunciated therein and consider it signth- cant that the circuit court's decision remained intact when an appeal therefrom was denied by the Supreme Court. As Chairman Miller indicates in his concurring opinion that he, too, subscribes to Inland Trucking, it is clear that a majority of the Board desires to abide by that decision. The Seventh Circuit reasoned as follows: Although the Supreme Court held in American Ship Building, supra - that it was not unlawful for an employer temporarily to shut down his plant and lay off his employees "for the sole purpose of bringing economic pressure to bear in support of his legiti- mate bargaining position," the Supreme Court issued a caveat: "we intimate no view whatsoever as to the [legal] consequences which would follow had the employer replaced its employees with permanent ... or even temporary replacements." The circuit court also held that Brown Food Stores, supra, which was handed down by the Supreme Court on the same day as American Ship Building„ does not provide a basis for finding it legally permissible for an employer to operate with "replace- ment employees to accompany an offensive .. . lockout.- In so holding, the circuit court found that Brown Food Stores involved a "special [situation] in which the replacement measures taken by the employers were ... deemed justified by particular circumstances as fair defensive responses to a situation precipitated by a [whipsaw] strike - . _ The circuit court thereupon invoked the Supreme Court's subsequent decision in Great Dane Trailers, supra, which set forth the following criteria for determining the propriety of an employer's conduct: ... First, if it can reasonably be concluded that the employer's discriminatory conduct was "in- that Respondent unlawfully withheld vacatimmn and holiday pay We agree. However, contrary to Members Kennedy and f4mellma, we would not restrict the basis for finding the viola*an as to holiday pay. OTTAWA SILICA COMPANY herently destructive" of important employee rights, no proof of an antiunion 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 ad- versely affected employee rights to some 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. [388 U.S. at 34.1 The circuit court then found as follows on the basis of the first test: We conclude that the bargaining lockout, which was held in American Ship not to be inconsistent with protected employee rights, does become so if the employer does not shut down, but continues operation with temporary replace- ments. Such lockout forecloses the employees' opportunity to earn without surrendering the corresponding opportunity of the employer. It would not merely pit the employer's ability to withstand a shut down of its business against the employees' ability to endure cessation of their jobs, but would permit the employer to impose on his employees the pressure of being out of work while obtaining for himself the returns of contin- ued operation. Employees would be forced, at the initiative of the employer, not only to forego their job earnings, but, in addition, to watch other workers enjoy the earning opportunities over which the locked out employees were endeavoring to bargain. Permitting an employer to impose this additional price on the protected right to collec- tive bargaining would, in our opinion, conflict with the intended scope and content of that right .... [440 F.2d at 564.1 After ruling that the lockout plus use of replace- ments to continue operation was inherently destruc- tive of the protected rights of the locked-out employees, the circuit court also held that even if the second test was applied, the employer was unable to meet that test because it did not "come forward with the evidence of legitimate and substantial business justification" for its continued operation during its "offensive lockout." Applying the first criterion to the instant case, we would find in accord with the court's reasoning in 453 Inland Trucking that Respondent's use of some replacements to continue partial operation was inherently destructive of the rights of its regular employees. We would also find on the basis of the second criterion that Respondent has not presented "evidence of legitimate and substantial justification" for its conduct. As noted above, Chairman Miller constitutes with us a Board majority for the proposition that Inland Trucking correctly sets forth the legal principles which are applicable to the issue herein. Having signified his willingness to abide by those principles, Chairman Miller nevertheless concurs with Members Kennedy and Penello in finding Respondent's conduct lawful. In doing so, Chairman Miller fails to take cognizance of the inherently destructive charac- ter of that conduct and errs by relying on a jerry- built combination of three factors to support his departure from the rationale of Inland Trucking,- namely, (1) Respondent's utilization of its own nonunit personnel as replacements, (2) the Union's refusal to provide any assurances of continued operations, and (3) some evidence, although perhaps not totally conclusive, of a bona fide business justification for Respondent's actions. As to (1), it is clear that the coercive impact on the locked-out employees and the advantage to Respon- dent of continued operation would be just as great regardless of whether the temporary replacements are drawn from Respondent's plants or outside sources. As to (2), there is nothing in Inland Trucking . hich permits the Board to hold that the Union's refusal to assure continued operation would in any way justify Respondent's conduct. Although the Supreme Court in American Ship Building held that an employer has the right to determine the timing and duration of a simple lockout, the court did not in any way indicate that that right extends to a lockout which is accompanied by use of temporary replace- ments. As to (3), Chairman Miller concedes that the evidence as to Respondent's business justification is far from conclusive. A close examination of the evidence presented by Respondent shows that in fact it had little economic justification for its conduct. Thus, as noted above, Zwayer, the director of purchasing for an important customer of Respon- dent, received repeated assurances that Respondent could and would continue to operate in the event of a strike because Respondent had prepared a contin- gency plan for operation with replacements should such an eventuality occur. Indeed, Respondent concedes in its brief to the Board that its business was not "endangered by its actual failure to ship sand to its customers"; instead, Respondent limited the defense of its conduct to the claim that wh4t•was at stake was the risk of its "loss of reputation of 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reliability in maintaining shipments in the face of an imminent labor dispute." That claim must fall in view of Respondent's assurances to Zwayer that it would be able to continue shipments if a strike should occur. We turn now to the opinion of Members Kennedy and Penello who find that Respondent's conduct had a legitimate business purpose. In so holding, they improperly rely on American Ship Building and Brown Food Stores which, as noted above, respective- ly deal only with a simple lockout, i.e., a complete shutdown, and a special case involving a defensive response to a situation precipitated by a whipsaw strike. They make the unwarranted leap from those decisions to the entirely different situation presented in the instant case without adequate supporting reasoning even though, as our colleagues themselves concede, the Supreme Court explicitly stated in American Ship Building, with full awareness of its Brown Food Stores decision, that it was limiting its holding to a classic lockout situation and was expressing no view as to the legal propriety of continued operation with replacements of locked-out employees. Members Kennedy and Penello also cite Great Dane Trailers with approval. Yet they fail to provide a persuasive explanation as to how the criteria set forth therein lead to their conclusionary finding that Respondent's conduct was justified by business considerations. Finally, they do not accord appropri- ate weight to the Supreme Court's denial of the petition for certiorari in Inland Trucking. As we have already stated in our discussion of Chairman Miller's concurrence, the application of the criteria in Great Dane Trailers and Inland Trucking in our opinion compels the conclusion that Respondent's conduct was not only inherently destructive of protected employee rights but was also without sufficient economic justification. According- ly, we would find in agreement with the Trial Examiner that Respondent's lockout and concomi- tant operation with replacements violated the Act. APPENDIX POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Cylinger Gas, Chemical, Petroleum, Auto Service and-Accessory Drivers, Maintenance, Mechanics, Helpers and Inside Employees Local No. 283, International Brotherhood of Teamsters, Chauf- I The charge in Case 7-CA-8018 (1) was filed on June 17, 1970, and served on June 19, 1970, while the charge in Case 7-CA-8018 (3) was filed on July 9 and served on July 11, 1970 On July 17, 1970, a charge was feurs, Warehousemen and Helpers of America by withholding accrued holiday and vacation bene- fits from his employees for exercising rights guaranteed to them under the National Labor Relations Act, as amended. WE WILL NOT unilaterally change existing terms and conditions of employment of our employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, 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, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. All our employees are free to become or refrain from becoming members of the above-named Union or any other labor organization. Dated By OTTAWA SILICA COMPANY (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MAx ROSENBERG, Trial Examiner: With all parties represented, this proceeding was heard before me in Detroit, Michigan, on January 21 and 22, 1971, pursuant to an amended complaint filed by the General Counsel of the National Laboi Relations Board and an answer filed thereto by Ottawa Silica Company, herein called the Respondent.' The issues raised by the pleadings relate to whether the Respondent violated Section 8(a)(1), (3), and lodged in Case 7-CB-2208 which was served on July 19, 1970, and a consolidated complaint based on these charges issued on November 27, 1970 However, immediately prior to the commencement of the hearing OTTAWA SILICA COMPANY (5) of the National Labor Relations Act, as amended, by certain conduct to be detailed hereinafter. At the conclu- sion of the hearing, the parties waived oral argument. Briefs have been received from the General Counsel and the Respondent, which have been duly considered. Upon the entire record made in this proceeding, including my observation of the witnesses who testified on the stand, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE RESPONDENT'S BUSINESS Respondent, a Delaware corporation with its principal office and place of business in Ottawa, Illinois, maintains an office and place of business in Rockwood, Michigan. In addition, Respondent operates other plants in the States of California and Connecticut. In the course and conduct of its business operations, Respondent manufactures, sells, and distributes silica sand and related products. The Rockwood plant is the only facility involved in this proceeding. During the annual period material to this proceeding, Respondent sold and distributed at its Rock- wood plant products valued in excess of $500,000, of which products valued in excess of $50,000 were shipped from said plant directly to points located outside the State of Michigan. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is undisputed and I find that Cylinder Gas, Chemical, Petroleum, Auto Service and Accessory Drivers, Mainte- nance, Mechanics, Helpers and Inside Employees Local No. 283, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The General Counsel contends that Respondent violated Section 8(a)(l) and (3) of the Act when, on June 1, 1970,2 it locked out its employees at the Rockwood plant and continued to operate the facility with temporary replace- ments. He further maintains that Respondent violated Section 8(a)(1), (3), and (5) by its unilateral refusal to award holiday and vacation pay to the barred employees until after the parties had completed negotiations on a new collective-bargaining agreement. Finally, the General Counsel asserts that Respondent offended the provisions of Section 8(a)(1), (3), and (5) by unilaterally deviating from the terms of a recently expired contract with the Union in withholding guaranteed workweek pay. For its part, Respondent denies the commission of any labor practices proscribed by the statute. It is undisputed and I find that, on May 19, 1967, the Union was certified by the Board as the exclusive herein, the Regional Director for Region 7 issued an order severing Case 7-CB-2208 from the other cases in this proceeding because an agreement had been executed by the parties settling the matters raised by the "CB" charges 455 bargaining agent for an appropriate unit of all production and maintenance employees at Respondent's Rockwood plant.3 On June 1, 1967, Respondent and the Union entered into a labor agreement covering the wages and terms and conditions of employment for the unit personnel which was geared to expire on May 31. On March 16, George Vitale, the Union's vice president and chief negotiator, dispatched a letter to Charles Huestis, Respon- dent's industrial relations manager, advising that the Union desired to renegotiate the provisions of the outstanding contract. After receiving this communication, Huestis telephoned Vitale in April and a bargaining session was scheduled for May 15. Prior to May 15, the Union sent to Respondent a series a written contract proposals and, at the inception of the negotiations on that day, Respondent submitted its counterproposals. The parties met again on May 25, at which time Stephen Schultz, the Union's president, joined Vitale on the negotiating team. Huestis testified without contradiction and I find that, during this bargaining colloquy, Schultz remarked that "the company was going to pay, and pay through the nose. He said that if there was a strike the union would strike the company everywhere it operated :" Schultz added that "if the company was going to make money during the strike then he guessed that's what they would have to do," and he suggested that "perhaps the parties should revert to the old days when a labor agreement consisted of a wage schedule and a description of vacation and holiday benefits, and the union was free to strike over everything else." Following these comments, Schultz quit the bargaining table and Respondent's negotiators commenced to caucus. At the conclusion of the recess, Vitale announced that "the time was getting short; that the company had not given the union a guarantee of retroactivity, and that the company had made only proposals which were designed to take things away from the employees, and that we weren't going to get these things out of the contract without a strike. And further that the company to that point had not made any economic offers." The next meeting of significance took place on May 29. Shortly after the session convened, Huestis reminded those present that "time was getting short at that juncture; with the contract expiring two days later that we were confronted with a contract deadline; and at that time we would be confronted with a strike or a lockout." Huestis thereupon presented to Vitale three new economic propos- als. After digesting Respondent's offers, Vitale responded that "If that's all you've got you're going to get a strike" and he noted that the Union's negotiating committee "was empowered to call a strike." At the end of the session, Huestis requested that the current agreement be extended for a week to allow for further consideration of the unresolved issues, but Vitale insisted that any extension be on a day-to-day, basis. The session then terminated. Another meeting was conducted on May 31, the terminal date of the existing contract. At the outset of the 2 Unless otherwise indicated, all dates herein fall in 1970 3 Prior to the certification , and since 1940, Respondent's employees had been represented by the United Glass and Ceramic Workers of North America, AFL-CIO 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD convocation, Huestis again reminded the assemblage that less than 12 hours remained before the contract's expira- tion. According to Huestis' testimony, Vitale had asked for Respondent's final offer as to all issues throughout the negotiations and repeated his demand on this occasion. In response, Huestis spelled out the final proposals and wrote them on a blackboard. Upon receiving this information, Vitale stated, "If that's your final offer we'll take it to the membership." Vitale thereupon requested 75 copies of Respondent's proposed agreement because "he wanted to take it to the membership so he could show them the conditions under which the company was asking the employees to work." When Huestis inquired whether Vitale would recommend to his members that the proffered agreement be ratified, the latter replied that he would urge the membership to reject the contract. Vitale's version of the events which transpired at this meeting was generally corroborative of Huestis'. However, he insisted that, when Huestis inquired whether Vitale would recommend to the membership that the Respondent's proposed contract be accepted, he informed Huestis that he would make no recommendation one way or the other.4 At this juncture, Huestis advised Vitale that the unit employees would be sent home "until you either accept or reject" Respondent's proposals. The meeting broke up at approximately 1:30 a.m. on June 1. Coincident thereto, Respondent's supervi- sors notified the employees who had reported for the night shift which began at I1 p.m. that their services would not be needed and that they would be locked out until further notice. However, they were compensated for the time spent at the plant that evening. I further find that at least one employee was informed by Respondent that he would be replaced by supervisors during the lockout. The parties stipulated and I find that, at all times prior to the lockout on the morning of June 1, Respondent faithfully dis- charged its statutory duty to bargain in good faith with the Union.5 The parties stipulated and I find that, after the lockout on June 1, Respondent continued to operate-its Rockwood facility by temporarily replacing the unit employees with supervisory personnel then employed at Rockwood, supervisors imported from its Ottawa, Illinois, plant, as well as sales personnel. It is uncontroverted and I find that at no time during the course of the lockout did the Respondent hire individuals to staff the ranks of the temporary replacements. I also find that, whereas the unit employees numbered 72 immediately prior to June 1; Respondent continued operations after the lockout with a reduced cadre of 23 supervisory and sales personnel. The lockout remained in effect until late afternoon on June 5, at which time Huestis sent a telegram to Vitale advising that "work will be available to all bargaining unit employees . . . at Rockwood . . . at the start of the regular workweek commencing at 11:00 p.m., Sunday, June 7, 1970, under the same terms and conditions of employment as existed on May 31, 1970. All employees will be expected to report for work on their regularly scheduled shifts. The 4 I do not credit Vitale's testimonial assertion that he indicated to Huestis that he would be noncommittal in his recommendation to the membership regarding ratification of Respondent's final offer, in light of Vitale's utterances that he was dissatisfied with that offer and that he desired copies of Respondent's proposals in order to take them "to the company continues to be available to meet with the union at a mutually agreeable time to continue our negotiations." On June 6, Respondent dispatched a telegram to each of the affected employees which recited "Lock out ended. All employees are scheduled for regular shifts for workweek starting 11 PM June 7, 1970." On the same date, Respondent provided the Union with the requested number of printed copies of Respondent's contract proposals. The following afternoon, the Union conducted a membership meeting during which the Respondent's contract offer was rejected and an affirmative vote to strike was taken. On June 8, the Union established a picket line at the plant. As a result of the work stoppage, truckers refused to cross the picket line and load materials to satisfy customer sales. Despite the strike, collective bargaining continued. The labor dispute terminated on October 25 with the successful negotiation of a new labor agreement and all strikers were recalled to work. On November 4, the parties executed a settlement agreement which reduced the contract to writing. The General Counsel acknowledges that Respondent's lockout of its employees on June 1 did not, standing alone, constitute a violation of any provision of the Act. However, he asserts that, when accompanied by the use of temporary replacements, the employment exclusion of the unit personnel was so inherently destructive of their fundamental rights that this combined action offended both Section 8(a)(1) and (3). Alternatively, the General Counsel argues that Respondent's lockout was legally tainted, even in the conceded absence of direct evidence of antiunion considerations, because the employees suffered some degree of statutory hurt by their temporary replace- ment which Respondent failed to excuse with evidence of substantial business necessity. Respondent, on the other hand, argues that any discriminatory effect upon its employees' statutory rights occasioned by the lockout and replacements was privileged when viewed against the backdrop of the proven legitimate and overriding business conditions which then existed. In short, the General Counsel and the Respondent seek to pour their respective positions into the mold of legal principles enunciated by the Supreme Court in N.LR.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 34. In that case, the Court noted: First, if it can reasonably be concluded that the employer's discriminatory conduct was "inherently destructive" of important employee rights, no proof of an antiunion 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 substan- tial business justifications for the conduct. Thus, in either situation,- once it has been proved that the employer engaged in discriminatory conduct which membership so he could show them the conditions under which the company was asking the employees to work " 5 It was agreed by the parties and I find that Respondent had never been charged with violations of the Act poor to the institution of these proceedings. OTTAWA SILICA COMPANY could have adversely affected employee rights to some 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. I am not persuaded by the General Counsel' s initial thesis that Respondent's lockout, when buttressed by the utilization of temporary replacements to continue its operations, inherently destroyed important rights of its employees and constituted a per se violation of Section 8(a)(1) and (3). Recently, in Inland Trucking Co., et al., 179 NLRB No. 56, the Board had occasion to address itself to the issue of the legality of an employer' s use of temporary replacements during an otherwise lawful lockout. After an extensive and thorough review of the prevailing precedents, the Board, in a summary adoption of the Trial Examiner's Decision, concluded that the companies there involved had violated Section 8(a)(1) and (3) of the Act. However, as I read that decision, the Board declined to hold that the temporary hiring of replacements during a lockout, without more, automatically demonstrated antiunion motivation which' made the lockout statutorily proscribed, although this proposition had been forcefully advanced before that tribunal by the labor organization involved in that proceeding. Rather, the Board predicated its conclusion on the ground that the employer, having somewhat intruded on Section 7 rights, had failed to adduce suitable evidence to establish the economic legitimacy of the lockout. Accordingly, I conclude that Respondent did not engage in a per se violation of Section 8(a)(1) and (3) by locking out its employees on June 1 and continuing its operations with temporary replacements.6 Respondent, while conceding that its lockout and temporary replacements had some impact upon the protected rights of its employees, albeit slight, maintains that it has sustained the burden of showing that legitimate business exigencies warranted their curtailment. I turn to a consideration of this defense. It is undisputed and I find that Respondent mines, processes, and distributes silica sand at its plants in the United States. At the Rockwood installation, various grades and sizings of the sand are made. The process begins with the removal of the earth surface to expose the sandstone which is then blasted to free it from the deposit. Thereupon, it is crushed, dried, and separated by size. Subsequently, a portion of the sand is cooled and further separated into a different grade. Approximately 53 percent of the sand extracted at the Rockwood plant is sold to customers who utilize it in the manufacture of glass; 45 percent is vended to foundries; and, the balance finds its way to manufacturers of soap and wax. Because the silica sand mined from the Rockwood deposit contains an exceptionally low content of iron, a quality much preferred by manufacturers of glass, some of Respondent's custom- ers have become totally dependent upon it for their supplies. For example, the Federal Glass Company has 6 1 am not unmindful that, following the filing of petitions for enforcement and review, of the Board's decision, the United States Court of Appeals for the Seventh Circuit, in enforcing that decision, ruled that "a lockout in the circumstances at bar, accompanied by continued operation with replacement labor, is, per se, an unfair labor practice" under Sec 8(a)(1), and further noted that the employers' "lockouts plus use of replacements to continue operations [are] inherently destructive of 457 looked to Respondent as the former's exclusive source of supply from 1950 until August 5, when the customer discovered another supplier of sand with similar ferrous content. Because of the unique relationship which it maintains with customers who are glass manufacturers, Respondent constantly communicates with them'to keep them apprised of its supply capabilities. This regular dialogue is necessi- tated by the fact that glass producers operate their furnaces 7 days a week on a 24-hour schedule. Raw materials, including silica sand, are fed into the furnaces on a continuous basis in the production of molten glass. Once this continuity is interrupted by the inability to receive timely supplies of sand for the furnaces, glass manufactur- ers may incur untoward losses by the closure of the furnaces due to the fact that fixed costs for furnace deterioriation continue despite the shutdown, gas must be supplied to service them even though they are idle, and standby personnel must be utilized to tend the furnaces although they are not producing molten glass. During the period of a shutdown, a glass manufacturer may be compelled to lay off hundreds of employees and suffer financial loss which, in some instances, may approximate $35,000 per day for each furnace which has been closed.? Because of the economic injuries which might befall Respondent's customers in the event that it was unable to maintain a steady flow of silica sand, Respondent's action in locking its employees out was in substantial part prompted by the fear that it would lose sales to glass manufacturers to competitors if its supply reliability became impaired. In this connection, Respondent antici- pated a substantial reduction in sales to a plant operated by Owens-Illinois Glass Company in Brockport, New York, in the event Respondent failed to fulfill its delivery commitments, and did in fact suffer a loss of business when Federal Glass Company transferred a portion of its account to another supplier on August 5. In light of Respondent's acknowledgement that its lockout, coupled with the use of temporary replacements, caused "some" impingement on rights guaranteed to unit employees under the Act, the only inquiry remaining is whether Respondent has carried its burden of proof that it was motivated by legitimate objectives, under the teachings of Great Dane Trailers, Inc., when it precipitated the lockout. After a careful review of the evidence, I am not persuaded that Respondent has carried the day on this score. The primary thrust of Respondent's economic defense is that, faced with the threat of a strike and the Union's insistence on a day-to-day extension of the old contract, confronted with the obligation of supplying its glass producing customers with a steady stream of silica sand to forestall economic loss through a disruption of their production, and threatened with the defection of glass producers to competitors due to its inability to fulfill the protected rights " Inland Trucking Co, v. N LR B, 440 F.2d 562 (C A 7) 7 During the lockout and ensuing strike , the Respondent expended its efforts almost exclusively in supplying its glass manufacturing customers who actually received 95 percent of their normal volume through shipments by rail Foundry customers were relegated to a very minor priority primarily because they were supplied by independent truckers whose drivers refused to cross the Union's picket line when the strike began. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD customers' material needs, Respondent chose the tactic of the lockout and the temporary replacement of its workers. Respondent points out that, with the .commencement of the lockout, it continued its operations with the substitu- tion of only 32 percent of its normal work complement, hired no new replacements for its working supervisors, and acquired no new customers. However, this argument bears the seed of its own destruction. For, if Respondent has stayed its turnkey hand until the Union forced a work stoppage, Respondent could have continued to operate its business in the same fashion and to the same extent as it did after it embarked upon the lockout. In other words, it is not apparent on this record that Respondent would have been in any substantial sense more economically or business wise inconvenienced by a strike on June 8 than it was when it voluntarily triggered a work stoppage of its regular employees by locking them out on June 1. Indeed, Respondent's business problems advanced in justification of its lockout action do not differ in any significant degree from those presented in Inland Trucking Company, supra, where the Board held that these economic considerations were insufficient to establish that the employers therein were properly motivated in barring the plant door to the regular employees and employing temporary replacements to continue operations. In sum, I am convinced and conclude that, by utilizing temporary labor to perform the duties of employees whom the Respondent had locked out on June 1, Respondent, under the circumstances here presented, thereby interfered with, restrained, and coerced the unit personnel in the exercise of their rights under Section 7 of the Act, and concomitantly discouraged membership in the Union by discrimination against them in respect to their hire and tenure of employment, without legitimate and substantial justification, in violation of Section 8(a)(1) and (3) of the Act. As heretofore chronicled, the complaint alleges that Respondent violated Section 8(a)(1), (3), and (5) by unilaterally refusing to award accrued holiday pay, vacation pay, and guaranteed workweek pay to eligible employees. The facts are not essentially in dispute on these issues and I find them to be as follows. Article VIII, section 4, of the contract between the parties which expired on May 31 provided, in pertinent part, that "Holiday pay shall be paid only to employees who work the hours of work scheduled for them during the day preceding and the day following the holiday during the normal workweek unless previously excused by the Company." Respondent operates the Rockwood plant on a three-shift basis. The shifts extend from 7 a.m. to 3 p.m., 3 p.m. to 11 p.m., and 11 p.m. to 7 a.m. In 1970, Memorial Day fell on Saturday, May 30, and that day was classified as a holiday within the purview of the agreement. It was stipulated that all employees who worked on Sunday, May 31, and all employees who reported for the 11 p.m. to 7 a.m. shift on May 31, but who were sent home at 1:30 a.m. on June 1 due to the lockout, received pay for that holiday on June 8, the next regularly scheduled payday as well as the date on which the strike commenced. It was further stipulated that all employees who would have reported for work but for the lockout on the 7 a.m. to 3 p.m., and the 3 p.m. to II p.m. shifts on June 1 did not receive pay for the Memorial Day holiday until after the parties settled upon a new agreement, although Union Vice President Vitale requested that Respondent make such payment on June 6.8 Article VII, section 1, of the old agreement relating to vacations stated that "The vacation period for employees, after their first year anniversary date as herein provided shall be from January I to December 31, both days inclusive, of each year." Section 5 provided that "An employee requesting to take a portion of his vacation as pay in lieu of time off shall be paid such pay at the time he takes his vacation; or it no vacation is taken, on his anniversary date." It was stipulated that employees customarily took vacations throughout the year after prior consultation and arrangement with their supervisors, and that Respondent did not maintain a policy of entirely shutting down its operations for vacation purposes. It was further stipulated that, between June 1, the date of the commencement of the lockout, and October 25, the date on which the strike terminated, Respondent refused to award any vacation pay to the qualified employees despite Vitale's request made to Respondent on June 6 that it do so. However, all eligible employees received their vacation pay by December 31. John Day, an employee who had worked for Respondent since 1954, was entitled to vacation pay during 1970. Around Eastertime, and prior to the lockout, he applied for 1 of the 3 weeks of vacation entitlement and his application was granted. However, he deferred receipt of the vacation check until he planned to take the balance of his vacation. Although Vitale asked Respondent on June 6 to compen- sate the eligible employees for the vacation pay, Respon- dent refused to do so until the strike terminated in October. Luther Miller was hired by Respondent in 1963. On or about May 8, he filled out an application form indicating that he desired to go on vacation between June 14 and 26, and returned it to his supervisor. At the time, he inquired whether he could obtain his vacation pay on June 12 and the supervisor responded in the affirmative. Miller did not receive his check until after the strike had ended, despite Vitale's prior request for the money. Floyd Williams was first employed at the plant on April 16, 1962. Sometime between June 8 and October 26, he informed Respondent that he wished to be paid for his accrued vacation leave in lieu of time off and was refused. However, he received the payment when the strike was concluded. Article IV, section 1(D), of the expired labor contract recited that "All employees who have been in the employ of the Company for a period of six (6) months or more shall be given one (1) week's notice, or one (1) week's pay in lieu thereof, if permanently laid off from employment due to reduction in force." Article VI, section 2, goes on to state that "All employees shall be paid on the basis of a guaranteed workweek consisting of forty (40) hours in consecutive days Monday through Friday." It was stipulat- ed that no weekly guaranteed wage was paid to the locked- 8 A similar holiday pay eligibility provision was also embodied in the new agreement which was reduced to writing on November 4. OTTAWA SILICA COMPANY out employees for the week of June 1 although Vitale had requested such payment on June 6. With respect to its failure to award holiday pay for Memorial Day to those employees who did not work on the first two shifts of June 1, Respondent's defense, concisely stated in its brief, is portrayed in its assertion that "Employees who were denied holiday pay from June 1 to October 25 simply were not eligible under the prior agreement." It is, of course, quite true that employees who' did not toil on June 1 would have forfeited their eligibility to the holiday pay if the disqualification resulted from their voluntary act. However, as I have heretofore found, the employees' absence from the plant on June 1 resulted, not from their volitional failure to comply with the existing "surrounding day" rule contained in the contract, but rather from Respondent's illegal lockout which led to their exclusion from work on that date. It requires no citation of precedent to support the conclusion which I here reach that an employer who, through the commission of unfair labor practices, causes economic hurt to his employees by withdrawing or withholding benefits already bargained for and accrued, runs afoul of Section 8(a)(3) of the Act. Moreover, even were I to have found that the lockout was sanctioned by prevailing law, the withholding of the holiday pay would nevertheless be condemned for, as the United States Court of Appeals for the District of Columbia observed in N.L.R.B. v. Local 155 of the International Molders and Allied Workers Union, AFL-CIO [United States Pipe and Foundry Company], 442 F.2d 742, 746. "While an employer may usel its economic strength -its economic weapons-to pressure employees and their representative union to agree to its terms, and while the withdrawal of benefits here was economic pressure for that purpose, when such a weapon as here was used is concomitantly `inherently ... prejudicial to union inter- ests,' it becomes an unfair labor practice. American Ship Bldg. Co. v. N.L.R.B., 380 U.S. 300, 311." Furthermore, the unilateral denial of the accrued holiday pay, occurring not only during the lockout and strike, but while the parties were in the midst of collective bargaining for a new compact and while the Union remained the exclusive representative of the employees, was also violative of Section 8(a)(5) and I so conclude. Regarding Respondent's refusal to pay accrued vacation benefits during the period of the strike, Respondent takes the position that this conduct was privileged because "the practice upon which vacation pay became payable was certainly not an established practice at the time (i.e., after June I and before October 25) the demands for vacations were made but was in the process of renegotiation. The result of the renegotiation, tentatively agreed on before the lockout and strike, was that the Respondent was to have the exclusive right to schedule the tinung of vacations and that employees were not entitled to pay in lieu of vacations until they were actually scheduled and taken." Respondent further points out that, in the new agreement executed on November 4, the parties agreed to a clause which read, "Effective January 1, 1971 vacation must be taken in the calendar year when due ." Respondent's reliance on these factors can hardly serve as a defensive shield concerning the treatment of Floyd Williams. Williams' anniversary 459 date fell on April 16, approximately a month before negotiations were undertaken . As to him, his right to vacation pay had already vested. It is no answer to say that, because the parties may have agreed on a "different and inconsistent method of paying vacations prior to June I" than that provided in the old contract, Williams was to be denied of his accrued rights by alleged proposals which had no contractual effect at the time when he made his vacation request. Accordingly, as in the case of the withholding of holiday pay in the period from June 1 to October 25 despite the Union's request for such payment on June 6, I conclude that Respondent's action in failing to compensate employees for accrued vacation pay until the strike had ended was violative of Section 8(a)(1), (3), and (5). See N.L.R.B. v. United States Pipe and Foundry Company, supra. The General Counsel' s final contention relating to Respondent's failure to award its locked-out employees the weekly guarantee embodied in the expired contract for the period of the lockout needs no extensive discussion. To support his plea for such payment, the General Counsel equates the lockout with the phrase "permanently laid off due to reduction in force" as used in the old agreement, and maintains that Respondent's lack of appropriate notice of lockout obligates it to recompense the unit employees for wages lost during their debarment from the plant. That the lockout did not assume the dignity of a permanent reduction in force of the regular employees is evidenced by a variety of utterances and occurrences. Thus, when the employees who reported for the 11 p.m. shift on May 31, they were informed that they would be sent home until further notice and that their places would be filled by plant supervisors. During the lockout, the work was performed by supervisors and sales personnel whose positions had not been occupied by other replacements. The lockout persisted for only 5 days, after which all unit personnel were unconditionally offered reinstatement to their former jobs. Indeed, in its telegram of recall sent to the Union on June 5, Respondent told the Union that it "continued to be available to meet with the union at a mutually agreeable time to continue our negotiations." Moreover, on the evening of May 31, Industrial Relations Manager Huestis informed the employees that they would be sent home "until you either accept or reject" Respon- dent's final offer. in light of the foregoing, I am convinced that the Union had ample reason to believe that the lockout was temporary in nature, and did not constitute a "permanent" reduction in force. In any event, I have heretofore found that the exclusion of the employees between June 1 and 5 was discriminatorily motivated and hence illegal. In the remedial area of this opinion, I have recommended that Respondent be required to make the employees whole for any loss of pay they may have suffered as a result of this tactic. Accordingly, I find and conclude that Respondent did not violate either Section 8(a)(1), (3), or (5) of the Act by its unilateral withholding of guaranteed weekly pay, and I shall dismiss these allegations from the complaint. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that 'it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondent illegally discriminated against its employees by locking them out on June 1, 1970, and hiring temporary replacements to man the work force at the Rockwood, Illinois, plant. I have also found that, on June 5, Respondent terminated the lockout and uncondi- tionally offered to all locked-out employees full reinstate- ment to their former positions commencing with the next regular work shift on June 7. I shall therefore only recommend that Respondent make all of the affected employees whole for any loss of pay they may have suffered by reason of the discrimination practiced against them by payment to each of a sum equal to that which he would normally have earned from the date of the lockout to the date of the offer of reinstatement, less net earnings during said period, if any. The backpay provided herein shall be computed in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at the rate of 6 percent per annum computed in the manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. Inasmuch as Respondent has already compensated all eligible employees for their accrued holiday and vacation pay, I shall make no remedial recommendations with respect to these items. Upon the basis of the foregoing findings of fact and conclusions and the entire record in the case, I hereby make the following: CONCLUSIONS OF LAW 1. Respondent is an employer 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 Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, which unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and 9 In the event no exceptions are filed as provided in Sec 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations , be adopted by the Board and become its findings , conclusions and Order , and all objections thereto shall be deemed waived for all purposes. conclusions of law, and upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS Ottawa Silica Company, of Rockwood, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Cylinder Gas, Chemi- cal, Petroleum, Auto Service and Accessory Drivers, Maintenance, Mechanics, Helpers and Inside Employees Local No. 283, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by locking out employees and temporarily replacing them by other personnel without substantial and legitimate justification, thereby discrimi- nating in respect to the hire or tenure of its employees. (b) Discouraging membership in the foresaid labor organization by withholding accrued holiday and vacation benefits from its employees because they engage in activities protected by the Act. (c) Unilaterally changing existing terms and conditions of employment of employees. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, 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 I find will effectuate the policies of the Act: (a) Make whole all employees locked out by Respondent for the period from June 1 to 5, 1970, for any loss of pay they may have suffered by reason of the discrimination practiced 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 its plant in Rockwood, Michigan, copies of the attached notice marked "Appendix." 10 Copies of said notice, to be furnished by the Regional Director for Region 7, shall, after being duly signed by a representative of Respondent, be posted by it immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places io In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " OTTAWA SILICA COMPANY 461 where notices to employees are customarily posted. (d) Notify the Regional Director for Region 7, in writing, Reasonable steps shall be taken by Respondent to insure what steps Respondent has taken to comply therewith.[[ that said notices are not altered, defaced, or covered by IT IS FURTHER RECOMMENDED that, except as hereinabove any other material. found, all other allegations in the complaint be dismissed. 11 In the event that the Recommended Order is adopted by the Board the date of this Order, what steps the Respondent has taken to comply after exceptions have been filed, this provision shall be modified to read herewith " "Notify the Regional Director for Region 7, in writing, within 20 days from