Inter Collegiate Press

INTER COLLEGIATE PRESS 177 Inter Collegiate Press, Graphic Arts Division-Sar- gent Welch Scientific Co. and Sargent Welch Scien- tific Co. and Bookbinders Local No. 60, International Brotherhood of Bookbinders, AFL- CIO. Cases 17-CA-4498, 17-CA-4762, and 17-CA-4826 September 20, 1972 DECISION AND ORDER On February 9, 1972, Administrative Law Judge' Benjamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, Respondent and the Charging Party filed exceptions and support- ing briefs, the General Counsel filed cross-exceptions and a supporting brief, and Respondent filed a brief in support of the Administrative Law Judge 's Deci- sion in Cases 17-CA-4762 and 17-CA-4826. The National Labor Relations Board has consid- ered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Adminis- trative Law Judge only to the extent consistent here- with. The Administrative Law Judge found that Re- spondent violated Section 8 (a)(3) and (1) of the Na- tional Labor Relations Act by hiring temporary replacements for the employees whom it had lawfully locked out, but did not violate the Act by its brief layoff of three permanent employees shortly after the end of the lockout while temporary employees were performing unit work , and did not unlawfully impose more onerous working conditions on two of those permanent employees after their recall. The under- signed members adopt the Administrative Law Judge's recommendation to dismiss as to the post- lockout layoff and the alleged imposition of more onerous working conditions, but do not agree with his conclusions as to the hiring of temporary replace- ments during the lockout. Rather, we find, for the reasons stated in our opinion in Ottawa Silica Co., 197 NLRB No. 53, that, absent antiunion motivation, which is not shown here, an employer does not violate Section 8 (a)(3) or (1) of the Act by hiring temporary replacements to continue operations during an otherwise lawful lockout. Ac- cordingly, as a majority of the Board is of the view that no violation of the Act has occurred, we shall dismiss the complaint. ' The title of "Tnal Exanuner" was changed to "Administrative Law Judge" effective August 19, 1972. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. CHAIRMAN MILLER, concurring: Once again we face the question of whether or not the utilization of temporary replacements by an employer who engages in a lockout constitutes a vio- lation of our Act. Two of my colleagues appear to be of the view that the use of such replacements always creates a violation of the Act whereas another two of my colleagues appear to be of the view that it never creates a violation, assuming that the lockout itself is proper. As indicated by my separate concurring opinion in Ottawa Silica Company, 197 NLRB No. 53, I find myself unable to accept either unequivocal view. The Supreme Court, it will be recalled, issued its decisions in N.L.R.B. v. Brown, d/bla Brown Food Stores, 380 U.S. 278 ( 1965), and in American Ship Building Co. v. N.L.R.B., 380 U.S. 300 (1965), on the same day. In American Ship Building Co. the Court upbraided the Board for attempting to determine the legality of a lockout in any given case by assessing the relative economic power of the adversaries in the bar- gaining process. Instead of using such a test, a majori- ty of the Court held foursquare that "an employer violates neither § 8(a)(1) nor § 8(a)(3) when, after a bargaining impasse has been reached, he temporarily shuts down his plant and lays off his employees for the sole purpose of bringing economic pressure to bear in support of his legitimate bargaining position." As to the issue of the use of temporary replace- ments, however, the opinion of the Court in Brown appears to me to both permit and require this Board to engage in just the sort of balancing of interests in which it forbade us to engage in determining the legal- ity of a lockout as such. For in the Brown case, where, unlike American Ship Building, the issue of the utilization of temporary replacements was before the Court , the Court appears to have separated the issue of the legality of the lock- out from the issue of legality of the use of replace- ments. It gave little attention to the legality of the lockout in that case, noting that in American Ship Building it had held "that a lockout is not an unfair labor practice simply because used by an employer to bring pressure to bear in support of his bargaining position after an impasse in bargaining negotiations has been reached," N.L.R.B. v. Brown Food Stores, 380 U.S. 278, 284. But when the Court turned to the issue of the use of temporary replacements , it engaged in a lengthy discussion, balancing the impact of such conduct by the Respondents on possible discourage- 199 NLRB No. 35 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment of union membership against the importance and the legitimacy of the objectives of the employer. In the course of this discussion the Court stated at 289: When the resulting harm to employee rights is thus comparatively slight, and a substantial and legitimate business end is served, the em- ployers' conduct is prima facie lawful. Under these circumstances the finding of an unfair la- bor practice under § 8(a)(3) requires a showing of improper subjective intent.' In evaluating the probable effect of the use of temporary replacements on union membership, the Court noted, as minimizing factors, that (1) the re- placements were expressly used for the duration of the labor dispute only, (2) the membership, through its control of union policy, could end the dispute and terminate the lockout at any time simply by agreeing to the employer's terms and returning to work on a regular basis, and (3) the employer had agreed to incorporate a union-shop provision in the new con- tract. Then, in evaluating the legitimacy or illegitimacy of the employers' interests in resorting to the use of temporary replacements, the Court pointed to the lack of evidence of any antiunion animus, to the am- icable history of labor relations between the employ- ers and the union, and again to the temporary nature of the replacements. It concluded that all of these factors indicated an absence of improper motive. With respect to affirmative evidence of a legitimate business purpose, the Court appears to have given great weight to the legitimacy of the respondents' de- sire to maintain the integrity of, and the resultant increased bargaining strength afforded by, a unified multiemployer unit. If I understand the reasoning of the majority opinion of the Supreme Court in the Brown case, therefore, it is incumbent upon this Board in each case involving the use of temporary replacements during an otherwise legitimate lockout to: (1) Weigh careful- ly all of the circumstances in order to determine the extent to which the use of such replacements has a tendency to discourage union membership, and (2) balance against our conclusions in that regard the extent to which the use of such replacements was supported by a legitimate and significant business jus- tification or, on the other hand, the extent to which antiunion animus rather than bona fide business con- siderations motivated the employer's decision to utilize replacements. It was for these reasons that in my separate con- curring opinion in the Ottawa Silica case I found no violation under the facts of that case, but at the same time disclaimed what appeared to be the view of two of my colleagues that the utilization of temporary replacements would be justified in all otherwise per- missible lockout situations. While there is some language in the opinion of the Court of Appeals for the Seventh Circuit in Inland Trucking Co. d/b/a/ Oshkosh Ready Mix Co., 440 F.2d 562 (1971), cert. denied 404 U.S. 858 (1971), which might ,be read as outlawing the use of tempo- rary replacements as a per se interference with pro- tected employees' rights, such a holding would be directly contrary to Brown. I therefore read the Inland opinion to mean only that the use of such replace- ments under the circumstances there at bar constituted, in the court's view, such an improper interference. At any rate, in the latter part of the court's opinion in Inland, it clearly engaged in a balancing analysis and there concluded, as had the Board, that there was, insufficient evidence of legitimate and substantial business justification for the respondent's insistence upon continued operation during what the Court there referred to as an "offensive lockout." I am somewhat unsure as to the circumstances under which that court would regard a lockout as "offensive" or "defensive." In fact, I am less than sure that any such general labels are of real assistance in carrying out the kind of analysis which the Supreme Court would have us undertake. In the instant case, I have searched the record and am unable to detect any evidence that the use of temporary replacements here had any greater tenden- cy to discourage union membership than did like con- duct in the Brown case. Here, as there, Respondent made abundantly clear throughout that the replace- ments were to be used for the duration of the labor dispute only. Indeed, Respondent gave even greater assurances here, in that it offered to abandon both the lockout and the continued use of the temporary help if the Union would only give some assurance of its intent not to disrupt continued production by the in- vocation of its strike weapon. Secondly, here, as in Brown, at the time of the lockout the Employer had already offered terms and conditions of employment of greater advantage to the employees than those which had prevailed under the expired contract, and left available to the Union and the employees the same option emphasized by the court in Brown-i.e., to agree to return to work on a regular basis under an improved contract. Finally, here, as there, the Em- ployer had agreed that a union-security clause would be incorporated in its new proposed agreement.3 Turning then to an analysis of Respondent's le- 3 I regard the clause as in some measure probative of Respondent's lack 2 This same principle was subsequently further elaborated upon by the of union animus even though the effective date of the clause would have been Supreme Court in N L R B v Great Dane Trailers, Inc, 388 U S 26 (1967) deferred pursuant to Kansas law. INTER COLLEGIATE PRESS 179 gitimate or illegitimate objectives and business justifi- cations, we have once again, as in Brown, every indic- ation of an established, stable bargaining situation. While here it is clear that past negotiations had not always been consummated without resorting to the use of economic weapons, it is equally clear that Re- spondent fully accepted the Union's representative status, and had at no time attempted to evade its obligations to deal in good faith with its employees' chosen exclusive bargaining agents. The entire course of events also evidences that Respondent's only pur- pose was to attempt to retain its competitive position, which it felt would be seriously jeopardized by the economic effects of a strike during a crucial produc- tion period for the second consecutive year. While it is true that, unlike Brown, Respondent was not seeking to preserve the integrity of a multiem- ployer bargaining unit, one must ask whether this makes any significant difference in the analysis. The term "preserving the integrity of a bargaining unit" may have a euphoric sound, but the realistic fact is that the real meaning of preserving that integrity is the maintenance of maximum employer economic strength in dealing with a union across the bargaining table. A multiemployer bargaining unit has no inher- ent social value, and the legitimate interest of the employer in Brown Food Stores was not the preserva- tion of some ultimate social good, but purely and simply was the interest in maintaining, along with other relatively small employers, the added economic muscle supplied by their joint action. I see, therefore, no basis for deciding that the instant Employer's in- terest in maintaining its economic viability was any less justifiable a business consideration than the de- sire of Brown Food Stores to maximize its economic strength in bargaining by maintaining a solid bargain- ing front with other companies in its industry. Viewing, then, the economic justifications estab- lished in this record, I am satisfied that the record demonstrates their economic importance to Respon- dent and affirms Respondent's bona fides in pursuing its economic interests. This is not a case in which those justifications are asserted as a pretext, nor do I find any evidence that the Respondent intended its utilization of temporary replacements as any kind of a "scare" measure which had as its real design an attempt to force its employees out of the Union and into a course of future dealing which would eliminate the Union as their representative. As a matter of fact, this record further indicates that Respondent found that the use of temporary re- placements was not a satisfactory means of achieving continuity of high quality production and has re- nounced any intent to utilize such a route in the fu- ture, because it has proved to be inconsistent with the exercise. of good business judgment. This is added evidence, if any were needed, that Respondent's ends were related solely to economic considerations. Thus an evaluation of the circumstances of this case in the light of the Brown tests demonstrates that here, as in Brown, "not only is there absent in the record any independent evidence of improper motive, but the record contains positive evidence of the em- ployers' good faith." Thus I conclude that the evi- dence does not support any finding that Respondent's conduct here violated Section 8(a)(3) of our Act. For these reasons I join Members Kennedy and Penello in dismissing the complaint herein. MEMBERS FANNING AND JENKINS, concurring in part and dissenting in part: Contrary to our three colleagues, we would for the reasons stated by the Administrative Law Judge, in accord with our opinion in Ottawa Silica, supra, affirm the Administrative Law Judge's conclusion that Respondent violated Section 8(a)(1) and (3) of the Act by operating its plant with replacements for its locked-out employees from November 30, 1970, to June 1, 1971.4 As we pointed out in Ottawa Silica, Chairman Miller constitutes with us a Board majority for the proposition that the Circuit Court's decision in Inland Trucking, supra, sets forth the tests for determining the legal propriety of a lockout and concomitant opera- tion with replacements, namely, (1) where such con- duct is inherently destructive of protected employee rights, no proof of antiunion motivation is required even if the employer introduces evidence that the con- duct was motivated by business considerations, and (2) where the adverse impact on employee right is "comparatively slight," an antiunion motivation must be proved if the employer has come forward with evidence of legitimate and substantial justification therefor.' Applying the first test to the instant case, we would find in line with the court's reasoning in Inland Trucking that Respondent's use of replacements re- cruited from outside sources for a prolonged 7-month period was inherently destructive of the rights of its regular employee and therefore violative of Section 8(a)(1) and (3) without regard to any claim that such conduct was motivated by business considerations. As the court stated: 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 contin- ues operations with temporary replacements. Such lockout forecloses the employees' opportu- ° However, we agree with our colleagues in their adoption of the Adminis- trative Law Judge's dismissal of unfair labor practice allegations with respect to Respondent's post-lockout layoff of certain recalled employees 5 See also N L R B v Great Dane Trailers, supra, 388 U S at 34 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nity to earn without surrendering the corre- sponding opportunity of the employer . It would not merely pit the employer's ability to withstand a shutdown of its business against the -employees' ability to endure cessation of their jobs, but would permit the employer to impose on his em- ployees the pressure of being out of work while obtaining for himself the returns of continued 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 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, as protected in 29 U.S.C. § 157. [Inland Trucking Co., supra at 564.] However, even if the second test is applied, it is clear from the record that Respondent has not suc- ceeded in presenting evidence of legitimate and sub- stantial business justification for its continued operation during the lockout . In this connection, the Administrative Law Judge found no merit in Respondent's contention that its use of replacements was "a defense measure to protect itself from a well- grounded fear" of a strike during the busy season 6 In so holding, the Administrative Law Judge properly found that such a fear on the part of Respondent was "unreasonable" and "more subjective than objective" in view of the "complete absence of any indication that the [Union] threatened by word or deed to strike to achieve its bargaining ends." Although, as noted above, Chairman Miller here, as in his Ottawa Silica concurrence, reiterates his ad- herence to Inland Trucking principles, he once more fails to take cognizance of the court's rationale con- cerning the inherently destructive character of the conduct in which the Respondent engaged . In addi- tion, Chairman Miller's statement that Respondent had a business justification for operating with replace- ments rests on the flimsy basis that Respondent "felt [it] would be seriously jeopardized by the economic effects of a strike" during the busy season. As the Administrative Law Judge correctly concluded, Respondent's fear of a strike was without foundation as the record is devoid of any evidence that the Union threatened to strike in the event Respondent terminat- ed its lockout and recalled its regular employees. In the absence of any "explicit objective indication" of the Union's intention to strike, it is our judgment that Respondent's "subjective" fear of such an occurrence does not constitute a reasonable justification for con- 6 From about the first of February to the latter part of June cluding that a strike would have occurred had Re- spondent recalled the locked-out employees. Nor does it show that Respondent would have been seri- ously jeopardized if it had resumed production with the locked-out employees who notified Respondent of "their desire to return to their employment on an unconditional basis," even if one assumes, arguendo, that its fears of a strike were well grounded. Entirely apart from the fact that Respondent could have as- sured itself of a strike-free season by assuring the Union that it would negotiate a satisfactory collec- tive-bargaining agreement by the end of the season, Respondent has introduced no evidence that it would not have been able to hire replacements in the event of a strike. The record demonstrates that Respondent notified the Union on November 23 of its intention to resume operations on November 30, that after unsuc- cessful negotiations with the Union in an effort to obtain a no-strike commitment from the Union it be- gan hiring replacements and recalling temporary sea- sonal employees on November 30, and that full production in the locked-out departments resumed on December 1. Respondent has not come forward with any evidence suggesting why it would have been un- able similarly to hire replacements for striking em- ployees. Logic and experience strongly suggest that workers who are willing to take the jobs of locked-out employees will as willingly take the jobs of striking employees. Accordingly, we conclude that though Re- spondent no doubt had substantial and compelling reasons for resuming production, it has failed to dem- onstrate any business justification for discriminating against unit employees in resuming operations? Finally, Chairman Miller errs in relying on the Supreme Court's decision in Brown Food Stores, supra, which clearly does not govern the instant proceeding because it was a special case involving a defensive response to a situation precipitated by a whipsaw strike. As we observed in Ottawa Silica with respect to a similar misinterpretation on the part of Members Kennedy and Penello, the Supreme Court was fully aware of Brown Food Stores when it explicitly stated in American Ship Building, supra, that it was limiting its holding to a classic lockout situation and was ex- pressing no view as to the legality of continued opera- tion with replacements of locked-out employees. We now address ourselves to the opinion of Members Kennedy and Penello who find that Re- spondent did not violate the Act by hiring temporary replacements to continue operation during the lock- It is of course clear that Respondent discriminated against employees who were represented by the Union in selecting employees to work when it resumed operations This discnmmnahon was demonstrated not only by the failure to recall the locked-out employees but by Respondent's recall of temporary seasonal employees and the immediate lockout of those among them who would have become part of the bargaining unit had Respondent allowed them to begin their third season of work. INTER COLLEGIATE PRESS out. Although they gave some minimal recognition in Ottawa Silica to the business justification criterion of Inland Trucking, they now make no reference to that test which they have apparently abandoned in the instant case. As Chairman Miller states in his concur- rence herein, Members Kennedy and Penello "appear to be of the view that it [the use of temporary replace- ments for locked-out employees] never creates a viola- tion, assuming that the lockout itself is proper." Thus, by their complete disavowal of both Inland Trucking criteria, which are in turn set forth by the Supreme Court in Great Dane Trailers, Members Kennedy and Penello fall into an entirely untenable legal posture. As we believe that Respondent's conduct was destructive of protected employee rights and that, in the absence of any objective indication of the Union's intention to strike, Respondent did not have a legit- imate and substantial business justification for its conduct, we would find that Respondent violated the Act. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Trial Examiner: The charge in Case 17-CA-4498 was filed on November 23, 1970; the complaint was issued on June 10, 1971. The charge in Case 17-CA-4762 was filed on July 14, 1971; the complaint was issued on September 27, 1971. The charge in Case 17- CA-4826 was filed on September 7, 1971; the complaint was issued on November 2, 1971. The three cases were consol- idated for hearing on November 4, 1971. The hearing was held in Kansas City, Missouri, on November 16, 17, 18, 19, and 30 and December 1 and 2, 1971. (The motions of the General Counsel and Respondent to correct the transcript are hereby granted.) The issue in Case 17-CA-4498 is whether Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, when it hired temporary replacements for its locked-out employees on and after November 30, 1970. The issue in Case 17- CA-4762 is whether Respondent violated Section 8(a)(1), (3), and (5) of the Act when it assigned certain work on June 24 and 25, 1971, to a temporary replacement rather than to Irene Barnes, Mary Alice Helm, or Ruby Patterson, em- ployees who had been locked out and who were on layoff on those 2 days. The issue in Case 17-CA-4826 is whether Respondent violated Section 8(a)(1), (3), and (4) of the Act by transferring Irene Barnes and Mary Alice Helm on Sep- tember 2 and 3, 1971, to jobs that were more onerous and demanding than their usual assignments . For the reasons set forth below, I find for the General Counsel in Case 17- CA-4498 and for Respondent in Cases 17-CA-4762 and 4826. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of oral argument and briefs, I make the following: FINDINGS OF FACT 1. JURISDICTION 181 Respondent, an Illinois corporation, operates a print- ing plant in Mission, Kansas, where it manufactures and sells graduation announcements and yearbooks to colleges, universities, high schools, and junior high schools and man- ufactures and sells other printed products. Goods and mate- rials purchased for more than $50,000 are annually received at the Mission plant from suppliers located outside the State of Kansas. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Charging Party is a labor organization within the meaning of Section 2(5) of the Act. II THE UNFAIR LABOR PRACTICES A. Case 17-CA-4498 1. Background Inter Collegiate Press, the Mission, Kansas, plant in- volved in this proceeding, is one of three which together comprise the Graphic Arts Division of Sargent Welch Sci- entific Co. Donald Tyler is general manager of the Graphic Arts Division. Inter Collegiate's principal products are year- books and announcements. To that end, its production fa- cilities are organized into an order entry department, a yearbook department, and an announcements department. Production in the yearbook department begins when Re- spondent receives from a school its initial yearbook specifi- cations, including pictures, art work, and copy. The order goes first to the mat receiving department, next to the com- position department where type is set. Then the pages pro- ceed through the camera area, followed by the stripping and platemaking areas where lithographic preparatory work is performed. The plates go to the lithographic pressroom where the actual printing operation occurs. No employees represented by the Charging Party are involved in any of these operations. While they are taking place, yearbook covers are being manufactured in the cover department. The Charging Party represents all full-time and permanent seasonal employees in the cover department. (Respondent also employs temporary seasonal employees. An individual advances from temporary seasonal to permanent seasonal status; i.e., he moves into the bargaining unit represented by the Charging Party at the beginning of his third season of employment.) Finally, the printed material and the covers come together in the bindery department where the year- book is completed and where the Charging Party represents all full-time and permanent seasonal employees. Production in the announcements department begins when paper is cut to specifications by employees repre- sented by the Charging Party. Like yearbook pages, the announcements and other graduation accessory items are printed by employees who are not represented by the Charging Party. They then move into the announcement assembly area where they are finished, folded, inspected, and packaged by employees who, provided they enjoy full- time or permanent seasonal status, are represented by the Charging Party. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Because the great bulk of its products must be delivered during or just before the school graduation season in June each year, Respondent's production peaks in the first half of each year. Its season, in the sense of the period during which it is utilizing its facilities at their maximum capacities so that it cannot increase its production by adding employ- ees or increasing overtime, runs from around the first of February until the latter part of June. During this part of the year the complement of employees at Inter Collegiate Press grows, through the hiring of seasonal employees, from something over 200 to more than 500. Respondent markets its products through salesmen scattered throughout the United States and Canada. It an- nually holds a regional sales meeting in Washington, D.C., in mid-December and another in Kansas City in mid-Janu- ary. It furnishes its salesmen with various samples and other promotional material for their use in persuading the schools on which they call to deal with Respondent rather than one of its competitors who, along with Respondent, compete aggressively for the market. Respondent also furnishes kits to the schools which have entered into yearbook contracts with it to assist editors in preparing their copy. Materials for salesmen and editors are manufactured at the Inter Collegi- ate Press plant and, because of the seasonal nature of the business, must be ready at approximately the same time each year. Because of the nature of the products, time of delivery is of the essence in contracts which Respondent enters into with schools. (Respondent guarantees delivery of yearbooks 10 weeks after receipt of final copy from the customer. With respect to announcements, delivery is guar- anteed in 6 weeks.) The labor relations history of Inter Collegiate Press began in 1963 when District 50, United Mine Workers of America, filed a petition in Case 17-RC-4163 for an elec- tion in a unit of production and maintenance employees. The case went to the Board on the issue of whether, as Respondent contended, temporary seasonal employees should be excluded from the unit. On October 25, 1963, the Board ruled that they should. An election was held on No- vember 15, 1963. On November 20, District 50 filed objec- tions. On February 11, 1964, the Regional Director set aside the election and ordered a second one. It was held on March 4, 1964. The vote was 117 to 89 against District 50. In December 1965 Lithographers and Photoengravers International Union, AFL-CIO, filed a petition in Case 17-RC-4942 for an election in a unit of lithographic pro- duction employees. Once again, the temporary seasonal em- ployees issue sent the case to the Board. On April 15, 1966, the Board ruled that they should be excluded from the unit. LPIU won the election which followed this decision. It was certified on May 12, 1966. On December 12, 1966, two unions filed petitions for elections. In Case 17-RC-5264, Kansas City Printing Press- men and Assistants Union, Local 16, sought an election in a unit of letter pressmen, steel die pressmen, and assistants. In Case 17-RC-5263, the Charging Party sought an election in a unit of bindery employees. Both petitions specified that temporary seasonal employees would be excluded. Consent elections were held on February 23, 1967. Both unions pre- vailed. Both were duly certified. The first contract between Respondent and LPIU ran from January 26, 1967, through September 30, 1969. It was negotiated without strike activity. The first agreement be- tween Respondent and the Printing Pressmen was also ne- gotiated without a strike. It expired June 30, 1971. Respondent and the Printing Pressmen reached agreement on a second contract on July 19, 1971, without a strike. The first contract between Respondent and the Charging Party ran from September 1, 1967, through August 31, 1970. Dur- ing the negotiations, which lasted from March until October 1967, the Charging Party struck Respondent for approxi- mately 2 weeks in late August or early September. The Charging Party struck over such issues as work by supervi- sors, manning, hours, voluntary work on Memorial Day holiday, and wage increases. It ended its strike without pre- vailing on these issues. The contract to which it eventually agreed did not contain all that the Charging Party had sought by striking with respect to these items. Respondent and LPIU began negotiations for a second contract in September 1969. During those negotiations the events took place which are recorded in Inter Collegiate Press, Division Sargent [sic] Welch Scientific Co., 194 NLRB No. 60. (Respondent was found not to have violated Section 8(a)(5) and (1) of the Act by withdrawing its recognition of LPIU as the bargaining representative of its lithographic production employees.) LPIU struck on March 6, 1970, and picketed the Inter Collegiate Press plant. Employees in the 1 units represented by the Printing Pressmen and the Charg- ing Party refused to cross the picket line. It was removed on the evening of March 10, 1970. Employees represented by the Printing Pressmen and the Charging Party returned to work the next morning. On March 9 or 10 Respondent threatened to file suit for an injunction against the Charging Party if it did not immediately honor the no-strike clause in its contract with Respondent by instructing the employees it represented to cross LPIU's picket line. No suit for an injunction was ever filed against the Charging Party. Negotiations for a second contract between Respon- dent and the Charging Party began with a meeting on July 7, 1970. Subsequent meetings were held in 1970 on July 27 and 30, August 6, 7, 17, 24, and 27, September 9, 15, 16, 17, and 28, October 15, 16, and 26, November 9, 18, and 23, and December 22; in 1971 on February 1, March 2, April 6, and November 9. No agreement has yet been reached. As of November 30, 1971, the day on which Tyler finished testify- ing in this proceeding, he had decided not to resort to a lockout during or in support of Respondent's 1972 season. His reason was that the lockout in support of the 1971 season (see below) has not solved Respondent's problems. Since I have received no information to the contrary in the interim, I assume that no lockout or strike has taken place between the close of the hearing and this decision, which comes during Respondent's 1972 season. Respondent and the Charging Party agree that they are under a continuing duty to bargain with respect to employees in the unit for which Charging Party was certified on March 3, 1967; namely, all full-time and permanent seasonal bookbinders, excluding temporary seasonal employees, home workers, office and clerical employees and all other employees, guards and supervisors as defined in the Act. (Except for the INTER COLLEGIATE PRESS 183 period of the lockout, Respondent has continued and is continuing to check off dues for the Charging Party accord- ing to their expired contract.) 2. The lockout The same issues for which the Charging Party had fought and lost in 1967, namely, work by supervisors, man- ning (i.e., which employees in which job classifications would be permitted to setup and/or operate which equip- ment in the plant), hours, whether employees could be com- pelled to work on Memorial Day, and wage increases, came up early in the 1970 negotiations. As the Charging Party pressed each of its demands in these and other areas, Respondent's spokesman (Tom Barr, personnel director of the Company, prior to August 17; Earl Engle, Respondent's counsel, at the August 17 meeting and thereafter) stated that it was a strike issue, i.e., that it was a demand to which Respondent was so strongly opposed that it would take a strike rather than agree . At no time in the negotiations did the Charging Party (in the person of its spokesman, Meryl Cooper, the Charging Party's secretary-treasurer and busi- ness representative) say that it intended to strike. On the other hand, at no time prior to the meeting of March 2, 1971, did the Charging Party say that it did not intend to strike in an effort to win its demands. (This is the only significant credibility issue posed in the record. I do not credit the testimony of Terry Randel, an employee-member of the Charging Party's bargaining committee , that Cooper more than once responded to Respondent's "that's a strike issue" argument with a statement that the Charging Party did not intend to strike, especially in the early stages of the negotiations. I do so principally because Cooper himself, in the course of a searching cross-examination by Engle, was finally unwilling to go that far. Moreover, Engle, who testi- fied to the contrary as a witness for Respondent , impressed me with his candor . My findings as to the details of what happened during the negotiations and how Respondent ar- rived at the decisions it made are based primarily on his testimony.) When Engle entered the negotiations on August 17, 1970, 42 issues were still on the table . Only 13 were resolved prior to October 16, 1970. No issues were settled between September 15, 1970, and April 6, 1971. At the September 17, 1970, meeting the Charging Party made a wage proposal which Respondent rejected. At the September 28, 1970, meeting Respondent made a final proposal to resolve all outstanding issues. The Charging Party rejected it on Octo- ber 15, 1970. At that meeting, a Federal mediator stated that Respondent and the Charging Party were engaged in an exercise in futility. Engle and Cooper agreed that negotia- tions had reached a deadlock . (Respondent raised the possi- bility of breaking the impasse by changing job classifications at the meeting held on November 9, 1970. However, at the November 23, 1970, meeting the Charging Party rejected this feeler.) When the negotiations failed to progress to its satisfac- tion, Respondent considered the strategy of bringing pres- sure on the Charging Party by locking out the employees it represented in the hope it would lead to agreement on the basis of Respondent's terms. Engle first mentioned the pos- sibility of a lockout to Cooper at the conclusion of the September 16, 1970, meeting. Tyler, who did not participate in the negotiations , discussed the situation with Engle after the meeting of October 15, 1970 . He decided, as Engle rec- ommended, that, in the event the meeting scheduled for the next day did not result in some change in the situation, Respondent would lock out at the end of the day shift on October 16, 1970. Consequently, near the end of the Octo- ber 16 session, which began with Cooper's statement that he did not know why the parties were meeting because Respondent's final proposal was unacceptable to the Charg- ing Party and the Charging Party had nothing further to present, and which again proved fruitless, Engle announced Respondent had decided to lock out at 3:30 p.m. in support of its bargaining position . He said Respondent would not resume work in the bindery areas until it had a signed contract and he said Respondent was locking out all em- ployees represented by the Charging Party. Respondent an- nounced the decision to its employees in several notices which it distributed to employees on October 16. All accu- rately reflect Respondent's view of the situation as it existed at that time and truthfully set forth Respondent's reason for resorting to a lockout. The one distributed to all employees in the "Bindery, Announcement Assembly and Cover De- partments" is typical. It reads: To date the Company has been unable to reach agree- ment with the Bookbinders Union Local #60, your bargaining agent. In my judgment, the Union's de- mands far exceed the Company's financial ability to pay. On several occasions the Company has offered your Union the opportunity to audit its books. Your Union has refused these offers. The Company feels that negotiations with your Union are extremely critical. It is imperative that the Compa- ny has a signed contract with your Union before the busy season. If the Company does not have a signed contract, it will not be in a position to guarantee deliv- ery to customers on a timely basis. The progress in negotiations to date indicate to me that your Union intends to wait until the busy season to take affirmative' action in support of its bargaining demands. The Com- pany will not allow this to happen. Therefore, effective October 16, 1970 at 3:30 P.M. the Company will cease production in the Bindery, An- nouncement Assembly and Cover departments until such time as it has a signed contract with the Bookbin- ders Union. There will be no further work for you until such a contract is executed. /s/ D. A. Tyler D. A. Tyler General Manager INTER-COLLEGIATE PRESS The lockout began as scheduled at 3:30 p .m. on Octo- ber 16, 1970. It lasted through May 30, 1971 . The Charging Party put up a picket line at the Inter Collegiate Press plant when the lockout began . It removed it when the lockout ended. The picket signs read, "Inter-Collegiate Press Unfair Bookbinders Local No. 60 Lockout." On October 19, 1970, Cooper sent Tyler a letter which 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reads, in pertinent part, "On behalf of the Bindery Unit employees at your company, who have been locked-out, you are hereby notified that each and every one of them hereby request to return to their employment on an uncon- ditional basis." The Charging Party never withdrew or mod- ified this request. By early November Respondent realized that its lock- out strategy had failed. Consequently, it began moving in the direction of resuming production in the bindery, an- nouncement assembly, and cover departments without, however, capitulating to the Charging Party's bargaining demands. At the November 9, 1970, meeting Engle for the first time brought up the possibility of ending the lockout absent a signed contract with the Charging Party. He said that if the Charging Party would give Respondent a no- strike commitment until July 1, 1971, Respondent would end the lockout. A member of the Charging Party's bargain- ing committee said this was like putting a noose around the Charging Party's neck. Engle asked what the Charging Party's intention was. He asked if Respondent would get a strike if it ended the lockout. Cooper said that he could not give any answer to that question. That day or shortly there- after (the record is not clear as to the exact date) Respondent's request for a no-strike commitment as the price of ending its lockout was submitted to the locked-out employees by the Charging Party. The employees voted that they would give Respondent the commitment it sought if Respondent, in turn, would give the Charging Party a com- mitment that an agreement acceptable to the Charging Par- ty would be consummated by July 1, 1971. This counterproposal was relayed to Engle by Cooper. Respondent's proposal and the Charging Party's counter- proposal for ending the lockout while negotiations contin- ued became the basis of frequent exchanges between Respondent, in the person of Engle, and the Charging Party, in the person of Cooper, after November 9, 1970, especially in the period between November 9 and 30, 1970, when Respondent began hiring temporary replacements and re- sumed production in the bindery, announcement assembly, and cover departments. The only modification in either side's position came when Engle cut back the ending date for the no-strike commitment Respondent sought from July 1 to June 21, 1971. He did so because the latter date more nearly coincides with the actual end of Respondent's busy season than the former. This modification first appears in the record in a letter dated November 24, 1970, from Engle to Cooper which memorializes a telephone conversation between them that day. The possibility that Respondent would resume produc- tion with-temporary replacements first came up between Respondent and the Charging Party when Engle conferred privately with Cooper at the end of the November 18, 1970, negotiations. Engle told Cooper that he did not know where the negotiations were headed, that Respondent was going to have to get out the "season," and that Respondent could not take a strike during the season. He asked what the Charging Party's intentions were if Respondent ended the lockout without a no-strike commitment from the Charging Party. Cooper did not try to answer the question. Instead, he re- plied that Respondent did not offer the Charging Party anything and asked if Engle could guarantee they would reach agreement before January 1, 1971. Engle said that he could not give such a guarantee, that Respondent was ask- ing for a no-strike commitment without regard to any other agreements . Cooper said that the Charging Party would not give a no-strike guarantee because Respondent was not of- fering anything. Engle said that, if Respondent did not get a no-strike guarantee, it could only assume the Charging Party would strike during the busy season to support its demands. Cooper said Respondent was the only one talking about the strike. Engle said, if the Charging Party did not intend to strike, it would not be hurt by a no-strike commit- ment. Cooper said that Respondent was not offering any money and that it was trying to take all the rights away from employees. The conference broke up on that note. At the November 23, 1970, meeting of the negotiators, Engle asked the Charging Party to bung someone from its International Union to the negotiations because Respon- dent had a hard decision to make. He said it was a decision of some magnitude and had to be made by the following Monday (i.e., November 30, 1970). He then passed out cop- ies of a four-page letter dated November 21, 1970, ad- dressed to Cooper and signed by Tyler. After rehearsing the negotiations and Respondent's bargaining positions and sit- uation in detail, the letter reads in pertinent part: For some time now, based on the progress of nego- tiations, it has been the Company's opinion that Book- binders Union intends, if given that opportunity, to strike during the busy season in support of its bargain- ing demands. The Company cannot economically take a strike by the Bookbinders Union during the busy season and, if such a strike were to occur, the Company would be at the Union's complete mercy. Knowing that failure to meet delivery schedules of announcements and yearbooks would mean the permanent loss of a large number of customers, the Company would be in no position to resist the Union. The net result would be forced capitulation by the Company, in order to end the strike. The Company has offered to end the lockout pro- vided the Union will give the Company a no-strike guarantee through June of 1971. The Company made this proposal because it would allow the Company to guarantee deliveries to customers on a timely basis and would allow employees to return to work without com- pletely eliminating their right to strike in support of their bargaining demands. Unfortunately, the Union rejected this proposal. Notwithstanding the Union's initial rejection of this proposal, the Company is still offering it as a means to end the lockout, and this proposal may be accepted at any time. The Company is now faced with a double dilem- ma. If it ends the lockout without a no-strike commit- ment from the Union, the Company anticipates that the Union will strike during the busy season to enforce its bargaining demands. On the other hand, if the Com- pany does not start immediate production, it will not be able to make deliveries to customers on a timely basis. After due consideration of all the factors involved, including the Company's commitments and obliga- tions to the schools and to the students who have placed their confidence and trust in Inter-Collegiate Press, the Company hereby notifies you that unless the INTER COLLEGIATE PRESS 185 Company has a signed bargaining agreement with your Union by November 30, 1970, or the Union accepts the Company's proposal to end the lockout, the Company will hire temporary employees to perform all required work in the Bindery areas. Engle's and Cooper's telephone conversation on No- vember 24, 1970, resulted in several slight modifications of Respondent's bargaining position in addition to changing the proposed ending date for a no-strike commitment from July 1 to June 21. However, the changes were not substan- tial enough to induce the Charging Party to retreat from its position that it would only give a no-strike guarantee in exchange for Respondent's guarantee that a contract ac- ceptable to the employees would be negotiated by the same date. Consequently, Respondent began hiring temporary replacements for its locked-out employees on November 30, 1970. (It was so meticulous about the manner in which it went about implementing this decision of some magnitude that, because its expired contract with the Charging Party provided seasonal employees become members of the bar- gaining unit at the begining of their third season, it recalled five persons and simultaneously placed them on locked-out status because they would have begun their third season if they had been permitted to go to work.) It called in tempo- rary seasonal employees. It hired new employees. One man interviewed on November 30, 1970, actually began working that day. Full production resumed in the locked-out depart- ments on December 1, 1970. It has continued without inter- ruption since that date. (The only bargaining unit work performed in the plant between October 17 and November 30, 1970, occurred on November 18 when one supervisor spent 8 hours cutting paper to be used in printing announce- ments. The supply of cut paper on hand when the lockout began had been exhaused.) Once again, Respondent's decision to use temporary replacements for its locked-out employees was made by Tyler, based on advice from Engle. The portion of Tyler's November 21, 1970, letter which I have quoted above accu- rately and truthfully sets forth Tyler's reasons for reaching this decision. In summary, Respondent elected to resort to the use of temporary replacements rather than end its lock- out because it feared that the Charging Party would strike during the busy season, thus making it impossible, if the strike lasted any substantial length of time, for Respondent to meet its delivery date commitments to its customers. It selected December 1, 1970, as the date beyond which it could not afford to have its bindery and related operations shut down if it was going to be able to meet its production requirements during the busy season starting February 1, 1971, because of the time which would be required to train the replacements and the necessity of having some work finished before the season began. Factors which it weighed in reaching its decision were the fact that, by electing to strike during the off season in 1967, the Charging Party had not been able to bring effective pressure to bear on it, the effect of the LPIU's strike on its operations during the prior busy season, the reports it was receiving of its competitors' efforts to persuade its customers to abandon it by pointing to the fact that it was having labor trouble for the second year in a row, and the time at which it would need such items as salesmen's and editors' kits if its sales operations were not to be crippled. At the meeting held on December 22, 1970, the follow- ing exchange took place, in substance if not in haec verbae, between Engle and Cooper (my findings here are a para- phrase of Engle's notes): COOPER You are spending a lot of money to retrain and still won't be able to get the season out [i.e., meet your commitments during the busy season]. ENGLE The company told me we are getting pro- duction and will get the season out. COOPER You can't retrain 60 people. ENGLE Yes we can. Some of the people are not skilled yet in a week or 10 days they were trained. COOPER You ought to reduce the apprentice time for these people. ENGLE That's not the problem-the company pays them too much money. Non-skilled people are working all over Kansas City for $1.60 to $1.70 an hour. We're interested in ending the lockout if we are assured of getting out the season, but we can't take a strike during the busy season. COOPER A lockout has the same effect as a strike. ENGLE That's not so. The company is producing and it's going to get out the season. Labor disputes normally settle eventually, but I can't assure you the company will ever agree to some of your proposals, particularly the picket line clause. [Respondent wanted the Charging Party to accept the provision which is now part of its contract with the Printing Pressmen that another union's picket line at the plant would be hon- ored only in the event of a lockout, not in the event of a strike.] COOPER You'll just have to wait and see if you can get the season out. ENGLE We will. We're training now. In the height of the season we won't be able to train. We're going to be ready to put the season out. The Charging Party never capitulated. Respondent did. Instead of continuing the lockout until the very end of the 1971 season, i.e., June 21, 1971, Respondent ended it on June 1, 1971. It did so because the critical part of its season was then over. Not all of the locked-out employees elected to return to work when the call went out on May 19, 1971. Consequently, Respondent kept enough of the temporary replacements at work after June 1, 1971, so that it continued to have a full complement of employees, while discharging the balance of them. It was this fact which gave rise to Cases 17-CA-4762 and 4826. 3. Other facts The Charging Party paid benefits in the amount of $58,681 to its members during the lockout. It was disbursed by checks drawn on the Charging Party's "Strike Benefit Fund." The checks specified on their faces that the money being paid was a "Lockout Benefit." The words "Strike Benefit Fund" also appear on the faces of the checks. The work stoppage at Inter Collegiate Press from Octo- ber 16, 1970, through May 31, 1971, is referred to from time to time in the minutes of meetings held by Charging Party as well as the minutes of meetings of another labor organi- 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD zation in the Kansas City area. Sometimes it is referred to as a "strike." Other times it is referred to as a "lockout." At some time or times during the period from Decem- ber 1, 1970, through May 30, 1971, some locked-out em- ployees worked for employers other than Respondent. The record does not reveal how many or the length of the period or periods during which they worked. In the year ending at the close of the 1970 season, approximately 94 percent of Respondent's work was per- formed pursuant to contracts with educational institutions. Yearbooks comprised about 79 percent of these sales and announcements comprised about 15 percent of these sales. The remaining 6 percent of Respondent' s sales was com- mercial work. Respondent also manufactured 70 percent of its total yearbook volume between January 1 and June 27, 1970; 66 percent of its total yearbook volume between Feb- ruary 1 and June 27, 1970; and 52 percent of its total year- book volume between April 25 and June 27, 1970. Respondent also shipped 100 percent of its announcement volume between January 1 and June 30, 1970, and shipped 98 percent of its announcement volume between February 1 and June 30, 1970. Respondent bills its customers for purchases after the products have been shipped. In the years ending at the close of the 1969 and 1970 seasons, Respondent billed 69 percent and 64 percent, respectively, of its volume in yearbooks and announcements in March, April, May, and June. There are 66 full-time and permanent seasonal employ- ees in the unit represented by the Charging Party. To com- plement this regular work force, Respondent, each year, employs a number of temporary seasonal employees. For the weeks ending November 30,1969, February 6,1970, and May 4, 1970, Respondent employed 66 persons, 93 persons, and 144 persons, respectively, in the unit represented by the Charging Party. From November 30, 1970, through May 31, 1971, Re- spondent hired 249 employees in the bindery, announce- ment, and cover departments. When the lockout ended, 50 of the 66 locked-out employees returned to work. Respon- dent retained 61 of the employees it had hired during the lockout. Respondent works a large number of overtime hours during the busy season. During the period from the week ending January 25 through June 28, 1970, Respondent worked over 9,000 hours overtime in the bindery, over 1,500 hours overtime in the cover area, and over 3,000 hours overtime in the announcement assembly area. In the engraving press department, an area of the plant represented by the Printing Pressmen, Respondent operates panel foil presses, small die presses, and large die presses. For the years ending at the close of the 1969 and 1970 seasons, Respondent, respectively, produced the following impressions on the equipment: 6,607,537 and 6,586,000 on the panel foil presses; 9,564,554 and 9,986,893 on the small die presses; and 5,204,060 and 5,336,441 on the large die presses. In September 1970, Respondent made a projection, computed on a monthly basis, of the number of impressions it was required to produce on each type of press in the engraving department in order to make timely delivery of its announcements for the 1971 season. As of December 5, 1970, Respondent had not met its calculated production requirements and, on the basis of its production capabilities, Respondent projected that by the end of December 1970, it would be over 700,000 impres- sions off forecast on the panel foil presses, about 500,000 impressions off forecast on the small die presses, and over 700,000 impressions off forecast on the large die presses. Respondent did not meet its production estimates in the engraving department, in part, because of a shortage of cut paper. From October 16 through November 17, 1970, no paper was cut in the bindery because of the lockout. Re- spondent was out of cut paper. It was required to cut paper or close the engraving press department. If Respondent had not cut paper for 8 hours on November 18, 1970, and cut paper on a continuing basis after December 1, 1970, it could have achieved no further production in the engraving de- partment, and it would have failed to deliver 100 percent of its announcement business for the 1971 season. In the years ending at the close of the 1969, 1970, and 1971 seasons, Respondent shipped 1,002, 899, and 916 cover orders, respectively, by June 30. By February 1, 1969 and 1970, Respondent had respectively completed 36 percent and 35 percent of its total cover volume. As of December 1, 1970, Respondent had completed no covers for the 1971 season, and, on the basis of using inexperienced temporary replacements to perform the cover work involved, Respon- dent had a 9-week backlog of work in the cover area. Respondent must produce about 35 percent of its total cover volume by February 1 of each year in order to make deliveries on a timely basis, since, by that date, Respondent is working at 100 percent of its production capacity and, if necessary production is not accomplished in the cover area, it is not possible to make up the production loss. Because of production limitations, if Respondent had not com- menced work in the cover department on December 1, 1971, it would not have been able to train temporary replace- ments, clean up the backlog of work in the department, and produce approximately 35 percent of its seasonal cover vol- ume by February 1, 1971. On December 1, 1970, Respondent had a 12-week backlog of work in the bindery. To perform this work using inexperienced temporary employees, Respondent had ap- proximately a 17-week backlog of work. In the years ending at the close of the 1969, 1970, and 1971 seasons, Respondent shipped 1,002, 899, and 929 bind- ery orders, respectively, by June 27. In the year ending at the close of the 1969 season, Respondent produced a total of 542,115 books in the bind- ery, 475,986 of which were produced between April 1 and June 30, 1969. In the year ending at the close of the 1970 season, Respondent produced a total of 521,559 books in the bindery, 463,725 of which were produced between April 1 and June 30, 1970. By June 30, 1971, Respondent was obligated to manu- facture and ship from the bindery 916 yearbook orders, or 540,280 individual books. Respondent has a weekly produc- tion capacity of 50,000 stiff book covers in the bindery. On the basis of the 1969 and 1970 seasons, Respondent was required to produce 460,000 books between April 1 and June 30, 1971, in order to deliver on a timely basis for the 1971 season. To produce 460,000 books in the 8-week period INTER COLLEGIATE PRESS involved, Respondent was required to work at 100 percent of its production capacity; i.e., two shifts, 10 hours per day, 7 days per week. To complete the backlog of work, train new employees, and produce the necessary volume of books required, it was necessary for Respondent to start production in the bindery on December 1, 1970, in order to ship its announcements and yearbooks for the 1970-71 season on a timely basis when it opted for the hiring of temporary replacements in lieu of calling off the lockout. In the calendar year 1970, Respondent had a net loss before taxes of $261,046. Of this amount, about $120,000 is directly attributable to the labor dispute with the Charging Party. Respondent has an announced policy of granting equal wages and benefits to all employees in the plant . If Respon- dent had granted the Charging Party's bargaining demands throughout the plant, the 2-year cost to Respondent would have been $1,274,000. Prior to December 1, 1970, Respondent made an esti- mate of the time required to train new employees to perform the work functions in the cover , bindery, and announce- ment assembly areas. The training times ranged from 2 weeks to 12 weeks, depending upon the equipment involved. On November 30, 1970, Respondent commenced hir- ing replacements to resume full production in the cover, bindery, and announcement assembly areas . In order to retain a complete work force throughout the lockout period, as already indicated, it was necessary for Respondent to hire well in excess of 66 persons, the normal complement of the unit. Turnover of the temporary replacements made it difficult for Respondent's five supervisors to train a suffi- cient work force to produce the 1971 season, on a timely basis. The temporary replacements employed by Respon- dent in the bindery worked at an average productivity of 59 percent. In the 1971 season, Respondent had poor deliveries on announcements. The deliveries on yearbooks were fairly good, but Respondent experienced quality problems. In both the 1969 and 1970 seasons, Respondent had a total volume of business of about $6,200,000. As a result of late deliveries and poor quality in the 1971 season, Respondent's volume of business was reduced by an estimated $700,000. After December 1, 1970, Respondent subcontracted $50,012 of work that it would not have subcontracted in the 1971 season except for the labor dispute with the Charging Party. The work was subcontracted because Respondent did not achieve the necessary production levels in the plant with temporary replacements in order to deliver its mer- chandise on a timely basis. 4. Analysis and conclusions Respondent's defense to the charge that it violated Section 8(a)(1) and (3) of the Act by utilizing temporary replacements for the locked-out employees has two prongs. The first is that what was admittedly a lockout in its incep- tion on October 16, 1970, became a strike on and after November 9, 1970, even though Respondent admittedly never took any steps, prior to May 31, 1971, to end the lockout and the Charging Party admittedly never declared 187 that it was on strike. The events of November 9, 1970, which Respondent relies on are its offer to end the lockout if the Charging Party would give a no-strike commitment to run through the busy season and the vote of the Charging Party's members to reject that offer. The events after November 9, 1970, which Respondent relies on are its continuation of that offer, the Charging Party's counteroffer to swap such a commitment for a commitment by Respondent that negotiations would result in a contract satisfactory to the Charging Party by the end of the busy season, and the various exchanges between Respondent and the Charging Party on the subject, such as the conversation between Engle and Cooper at the Decem- ber 22, 1970, negotiations . Respondent's argument is sum- marized in this excerpt from its masterful brief: Although the work stoppage in the present case began as a lockout for the purpose of bringing negotia- tions to a conclusion, Respondent soon ceased condi- tioning the end of the lockout on a signed contract and, instead, insisted only upon a no-strike assurance from the Charging Party as a condition for ending the lock- out. The Charging Party, at this point, had the power to end the lockout by agreement not to strike. Thus, if the Charging Party and the employees truly wanted to work during the period in question, they could have done so simply by agreeing that they would work. In- stead, the Charging Party refused to grant a no-strike commitment, which would have allowed the employees to immediately return to work, because the Charging Party was dissatisfied with the Respondent's position in negotiations. In short, the employees (were on strike) did not return to work because of the status of negotia- tions. Finally, the Union conditioned acceptance of Respondent's no-strike proposal upon receipt of a guarantee by Respondent that a contract satisfactory to the employees would be agreed upon prior to June 21, 1971. At this point, the Charging Party was using its refusal (to return to work) to grant a no-strike assur- ance for the same purpose that unions often use the affirmative power of an economic strike-to obtain economic or contract concession from a company. In fact, the picketing after October 16, 1970, was for the purpose of keeping people and trucks out of the plant to help settle the dispute .... The Charging Party's strategy was succinctly revealed during the bargaining meeting on December 22, 1970. At that time, Cooper said that Respondent could not retrain persons to re- place the employees represented by the Charging Par- ty, that Respondent could not get the season out, that the lockout had the same effect as a strike, and that he would just have to wait and see if Respondent could get the season out .... Clearly, the Charging Party was striking without having called a formal strike. Respondent's argument is without merit. In the first place, the cases it cites (American Manufacturing Concern, 7 NLRB 753; Electric Auto-Lite Co., 80 NLRB 1601; Willam- ette Association, 125 NLRB 924; Marydale Products Co., 133 NLRB 1232; Erie Forge and Steel Corporation v. Unemploy- ment Comp. Bd. of Review, 146 A.2d 751; Punxsutawney Co. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD v. Unemployment Comp. Bd. of Review, 149 A.2d 683; Alma- da v. Administrator, Unemployment Comp. Act, 77 A.2d 765) are inapposite. More importantly, in Willamette, supra, the Board said, "A lockout by definition clearly involves an employer's refusal to allow employees to work when they are ready and willing to do so." Here, there is nothing in the record to indicate that Respondent's employees were at any time not ready and willing to return to work as, in fact, they did on June 1, 1971, when Respondent recalled them. Re- spondent asks why, if it did not intend to strike, the Charg- ing Party would not give it an unconditional no-strike commitment to protect it during the busy season. The short and simple answer is that the Charging Party was using a weapon from its arsenal to bring pressure on the Respon- dent just as Respondent was using a lockout to bring pres- sure on the Charging Party. There is no requirement in the law that a union must give a no-strike commitment as the price of avoiding a lockout of the employees it represents. Therefore, the Charging Party was acting within its legal rights when it insisted on a quid pro quo for the commitment Respondent sought. The work stoppage which began on October 16, 1970, was Respondent's doing. It could only cease to be a lockout when the Respondent or the Charging Party took some affirmative act to change its nature. The Charging Party never took any such step. The next affirma- tive step which Respondent took was to end the work stop- page on June 1, 1971. Therefore, it was a lockout during the entire period. The alternative prong of Respondent's defense is that it had a legal right to use temporary replacements for its locked-out employees under the circumstances which ex- isted. First, it argues, on the basis of American Ship Building Co. v. N.L.R.B., 380 U.S. 300, and N.L.R.B. v. John Brown d/b/a/ Brown Food Stores, 380 U.S. 278, that "the Supreme Court has interpreted the Act as sanctioning the use of lockouts by employers as an economic tool to be utilized within the process and procedure of collective bargaining as well as sanctioning an employer's hiring and use of tempo- rary replacements during a lockout." After taking the posi- tion, based on its analysis of the legislative history of the Act, especially the Taft-Hartley Amendments of 1947, that the lockout and the strike are correlative powers and that the Board may not dictate the procedures it may employ to make its lockout effective, Respondent recognizes that the situation presented here, at least insofar as this aspect of its argument is concerned, is still on the frontier of a develop- ing area of the law when it states: In view of the decisions in American Ship Building and Brown, Respondent is simply asking for the logical extension of this law to include the hiring and use of temporary employees during the period of a lockout as a legitimate right of an employer. The circumstances in this case present a rational and logical basis upon which to close the heretofore incomplete perimeter of an employer's right to resort to the lockout device as an economic tool in the process and procedure of collec- tive bargaining. This argument might well be characterized as a plea for a finding that the use of temporary replacements during a legal lockout is a per se nonviolation of the Act. In this connection, it must be kept in mind that there is no issue in this case as to the legality of the lockout itself. Therefore, there is no question but that Respondent's motive for doing what it did was not a discriminatory one. Respondent is correct when it states, in connection with the next phase of its argument, that the test of its conduct is not whether it sought to discourage union activity or evade bargaining, for those points are conceded by the General Counsel, but whether its activity was inherently prejudicial to union in- terests and devoid of significant economic justification. This state of the law, it seems to me, precludes a per se finding either way. For that reason, I reject this part of Respondent's defense. The second facet of Respondent's argument that it had a legal right to use temporary replacements goes like this: Respondent had no choice but to use temporary replace- ments if it were to insure continued operations on an eco- nomical basis. The test of the legality of its conduct is whether its activity was inherently prejudicial to union in- terests and devoid of significant economic justification. Un- der the objective circumstances which existed it had reasonable cause to believe that the Charging Party would strike during its busy season if negotiations continued that long and its regular employees were still at work. Therefore, the economic situation which it faced justified self-help measures . The use of temporary replacements was a legit- imate form of self-help to protect its economic interests because it was defensive in nature under the rationale of such cases as Betts Cadillac Olds, Inc., 96 NLRB 268, albeit the lockout began as an offensive lockout. The use of tem- porary replacements is not inherently destructive of em- ployee rights; i.e., the Court of Appeals for the Seventh Circuit did not intend such a sweeping finding when it referred to the use of temporary replacements in a lockout situation as a per se violation in its decision in Inland Truck- ing Co. v. N.L.R.B., 440 F.2d 562. The Inland Trucking case is distinguishable. Respondent's position is well summariz- ed by this sentence from its brief, as slightly modified by me: On the basis of the ... facts [in this case] it is submitted that Respondent's use of temporary replace- ments on December 1, 1970 was a "defense" measure to protect itself from a well-founded fear of a disastrous strike at a time most advantageous to the Charging Party [which is not proscribed by the Act). The first point in this argument at which I part compa- ny with Respondent, although it is not the basis of my decision, is that Respondent had a reasonable fear of a strike by the Charging Party during its busy season based on objective considerations. Tyler, the man who made both the decision to lock out and the decision to hire temporary replacements for Respondent, testified at several different points in the hearing about his reasons for fearing a strike during the busy season if he selected the option of ending the lockout instead of hiring temporary replacements when it became obvious that the lockout had failed. He said: Q. You stated that one of the reasons you decided to use temporary replacements when you did was be- cause you were afraid if you let the union employees back in without a no-strike committment they would INTER COLLEGIATE PRESS strike during the busy season. What was the basis of your thinking the union would strike you if they got back in? A. Well, we had offered them on several occasions and asked them for a no-strike commitment during this busy season and I could not understand why they wouldn't give it to us if they didn't plan to strike us. I had the pressure of our sales representatives on me at that time also. They were concerned because they were going to lose a large segment of their business, which was their income, if they didn't receive the orders on time, the customers were telling them that. The union, the experience that we had had in the previous year in the LPIU strike, the binders violated their no-strike clause in the contract and some of the same issues in the 1967 strike by the bookbinders were still major issues in this negotiation. Q. I want to know specifically what the union's economic demands had to do with your decision to use the temporary replacements. A. Well first of all we had been negotiating for four or five months with no success. We had tried to use a lockout which was ineffective in'bringing a con- clusion to these negotiations. We had told them, the union, several times that we could not, we were going to lose money, at least $40,000. We told them this, we couldn't raise the prices of our product and we just didn't have the money to give them their demands. Then when they refused to give us a no-strike commit- ment I felt we had to take these steps to protect our- selves against the strike. s s Q. (By Mr. Engle) Did you make any conclusion with respect to what the failure of the initial lockout meant? A. The failure of the lockout meant to me that the union was not going to take into account our financial situation. It was not going to change its position on the economic demands which we could not afford to pay them and I thought from that they would strike. Q. Why didn't you accept the union's offer to return to work without a no-strike commitment? MR NIXON I object to that. It is repetitive. It has been asked and answered already. TRIAL EXAMINER Overruled. A. Well, I felt that the-I couldn't understand, first of all, why they wouldn't give the no-strike com- mitment. The second thing is that I felt if they came back, they would wait until the temporary employees had been dispersed, and at that time strike us which would be in our peak season, and we wouldn't be able to get the season out. We would have trouble making the deliveries. 189 TRIAL EXAMINER What did you base that judgment on? THE WITNESS The major part of my judgment was that I could see no reason, if they didn't intend to strike me, why they wouldn't give me a no-strike commit- ment. That was the foundation. As can be readily seen, the theme of Tyler's conclusion that the Charging Party would strike during the busy season to enforce its demands if he gave them a chane to do so by ending the lockout is his inability to understand the Charg- ing Party's bargaining adamancy and its refusal to give an unconditional no-strike commitment. (The only objective circumstance involving the Charging Party he cites is the "fact" that "the binders violated their no-strike clause" dur- ing the LPIU strike in 1970. This is not true. The contract in effect between Respondent and the Charging Party at the time contained a standard no-strike, no-lockout clause. However, it also contained a provision that a refusal of employees to cross a picket line set up by another union in the plant would not constitute a breach of the agreement.) As I have already pointed out in another context, the Charg- ing Party had a legal right to insist on a quid pro quo if it agreed to give Respondent a no-strike commitment. There- fore, it does not follow that a refusal to give an uncondition- al no-strike commitment is an objective circumstance justifying fear of a strike, and Tyler's fear was more subjec- tive than objective. In my opinion, the other objective cir- cumstances relied on by Respondent in its brief, such as the strike by the Charging Party in 1967, are insufficient to outweigh Tyler's answers. In the total context of this case, especially the complete absence of any indication that the Charging Party threatened by word or deed to strike to achieve its bargaining ends, I find that Respondent's fear the Charging Party would strike it during its busy season if given a chance was unreasonable. However, I do not consid- er the point a crucial one. Even if my finding were to the contrary, I would still decide this case against Respondent for the following reasons: First, as I have also already indicated in another con- text, I agree with Respondent that this case should not be decided against it on a per se basis. The relevant part of the court's decision in Inland Trucking, supra, reads: 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 em- ployer does not shut down, but continues operation with temporary replacements. Such lockout forecloses the employees' opportunity to earn without surrender- ing the corresponding opportunity of the employer. It would not merely pit the employer's ability to with- stand a shut down of its business against the employ- ees' 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 him- self the returns of continued 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 addi- tional price on the protected right to collective bargain- 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing would, in our opinion, conflict with the intended scope and content of that right, as protected in 29 U.S.C. § 157. We conclude that a lockout in the circumstances at bar, accompanied by continued operation with re- placement labor, is, per se, an interference with protect- ed employee rights, and, accordingly, per se, an unfair labor practice under § 158(a)(1). Despite the express use of the phrase, I do not read this as requiring a finding of a violation at all times and under all circumstances. The introductory words of the sentence in which per se appears-"We conclude that a lockout in the circumstances at bar" (emphasis supplied)-permit of no other conclusion. This case, then, comes down to a question of whether it can be distinguished from Inland Trucking. It would serve no useful purpose to repeat here the numerous grounds Respondent lists as the basis for drawing such a distinction. Viewing this case in the light of the Board's and the court's opinions, especially the first paragraph I have set forth above from the court's opinion in Inland Trucking, I find no significant difference between this case and that one. In my view the issue framed by the record as a whole is whether an employer who has resorted to an offensive lockout is thereafter entitled to hire temporary replacements if the union does not state affirmatively that it has no intention of striking and refuses to give an unconditional no-strike commitment in a situation where the union has given no explicit objective indication that it will strike. Inland Truck- ing says that it does not. I am bound by the Board's decision in Inland Trucking. Therefore, I find that Respondent viola- ted Section 8(a)(1) and (3) of the Act when it used tempo- rary replacements for its locked-out employees from November 30, 1970, through May 31, 1971. B. Cases 17-CA-4762 and 4826 1. Facts in Case 17-CA-4762 When Respondent's regular employees were recalled to work effective June 1, 1971, seven who worked in the cover department failed to show up. Among the temporary replacements who were retained to fill out the complement needed was Norma Casey. (Miss Casey was one of seven temporary replacements who became permanent employees in July 1971 to replace those who had failed to return to the cover department when the lockout ended. However, at the time of the events in Case 17-CA-4762 she was still classi- fied as a temporary seasonal employee and thus not a mem- ber of the bargaining unit represented by the Charging Party.) Among the locked-out employees who returned to the cover department were Irene Barnes, Mary Alice Helm, and Ruby Patterson. Miss Casey's job during the lockout was inspector on the silk screen dryer. The inspector inspects covers as they emerge from the silk screen machines on a conveyor, rejects those which are imperfect, and boxes or not boxes the re- mainder, depending on whether the covers are for an Amer- ican or a Canadian order. She also prepares the boxes and marks them appropriately. When there are no covers to be "picked up" because the silk screen machines are being set up for a run or because they are down for some other reason, the inspector helps the operator by blocking and taping screens to prepare them for use in the silk screen machines. Blocking is the opaquing of pin holes in the screens so that ink does not come through on the covers in places where it is not wanted. Taping is the placing of tape around the edges of the frames which hold the screens for the same purpose. Finally, when she has nothing else to do the inspector washes used screens. Miss Casey was experienced and competent in all of these operations. Mrs. Barnes, who went to work at Inter Collegiate Press in November 1966, worked in the silk screen area and performed the inspector's duties for a peri- od of 4 to 6 weeks in the spring of 1970. Mrs. Helm, who went to work at Inter Collegiate Press in April 1964, worked as an inspector for 2 months in early 1965 and from time to time thereafter on a fill-in basis. However, she had not done that work for several years prior to the lockout. Mrs. Patterson, who went to work at Inter Collegiate Press in February 1962, worked in the silk screen area for the first 5 years, not, however, primarily as an inspector. She did from time to time perform the inspector's job during that period. In 1969 she returned to the silk screen area for a short time. When she discovered that she was still allergic to the chemicals used to wash screens, she asked to be transferred to another job. Her request was granted. (Mrs. Patterson was assigned permanently to the silk screen in- spector job on June 29, 1971. However, the duties were changed at that time so that she did not have to wash screens.) Mrs. Barnes, along with several other employees, was on layoff because of a lack of work in the cover department from June 14 through June 29, 1971. On June 11 Gary Belt, manager of the cover department, offered transfers to the silk screen area as machine operators to Mrs. Barnes and the other employees who were laid off with her in lieu of laying them off. There were three openings for silk screen opera- tors at that time. All of the permanent employees, Mrs. Barnes included, turned down the offer, presumably be- cause, as Respondent concedes, work in the silk screen area is more onerous and the working conditions less pleasant, due to heat, odors, and dirt, than the work Mrs. Barnes, Mrs. Helm, and Mrs. Patterson were regularly assigned to. (Two of these three jobs were eventually filled by retained temporary replacements.) On June 23 Belt told Mrs. Helm, Mrs. Patterson, Reva Beard, and Gladys Moore that they were laid off because of lack of work. Mrs. Patterson asked how long the layoff would last since, if it were for more than a couple of days, she could not afford to wait for recall. Belt assured the ladies it was only 2 days and they would be back at work the following Monday. Mrs. Helm asked Belt who was going to pick up covers off the dryer. Belt said Norma Casey was. Mrs. Helm asked how come Mrs. Patterson could not be given that work so that she would not have to be laid off at all. Belt said Mrs. Patterson was not qualified. Mrs. Helm and Mrs. Patterson were on layoff status on June 24 and 25, 1971. (So were Mrs. Beard and Mrs. Moore. They are not named as discrimmatees in the complaint in Case 17-CA-4762 because, in the General Counsel's view, they were not qualified to pick up covers coming out of the INTER COLLEGIATE PRESS 191 r silk screen dryer.) On those 2 days, Miss Casey performed the inspector's job . Since, apparently, the silk screen ma- climes were not down for any appreciable length of time, she picked up, inspected, and boxed covers. She had no occasion to block, tape, or wash screens. Mrs. Helm and Mrs. Patterson returned to work on Monday, June 28, 1971. Mrs. Barnes returned to work on Wednesday, June 30,197 1. Early in July a vacancy occurred in the inspector job. Belt offered it to Mrs. Barnes, among others . She turned it down. On July 18 there was an opening for a machine operator in the silk screen area . Belt offered it to Mrs. Barnes and Mrs. Helm. Both turned it down. There were other occasions in the period immediate following the end of the lockout in which temporary re- placements whom Respondent retained worked while em- ployees in the bargaining unit were on layoff. The Charging Party has not complained to Respondent that any of these incidents violated the rights of employees in the bargaining unit. 2. Facts in Case 17-CA-4826 On September 1, 1971, David Nixon , counsel for the General Counsel, telephoned Engle . Nixon told Engle that the regional office had determined there was merit to the charge in Case 17-CA-4762 in that Respondent had dis- criminated against Mrs. Barnes, Mrs. Helm, and Mrs. Pat- terson on June 24 and 25, 1971, by giving work to Miss Casey which they were qualified to perform . (The charge in Case 17-CA-4762 is worded in general terms-"discrim- inated ... by laying off or terminating its employees because of their membership in, or adherence to," the Charging Party. The General Counsel concedes that the Norma Ca- sey incident on June 24 and 25 , 1971, is the only one of those occasions when temporary replacements worked while bar- gaining unit employees were laid off which had any color of merit.) Engle disputed their qualifications . He called Tyl- er and obtained Tyler's permission for a test to see whether they were, in fact, qualified. His purpose was to obtain data to submit to the Regional Director in an effort to persuade him to change his mind or, if worse came to worst, to present to a trial examiner in Respondent's defense . Engle then telephoned Belt and explained the situation to him. He instructed Belt to use Mrs. Barnes and Mrs. Helm on the inspector job as long as necessary on September 2 and 3 to determine whether they were, in fact, qualified to perform it. He instructed Belt not to test Mrs. Patterson because he would rely on Mrs. Patterson's allergy history as the defense in her particular case . He told Belt to watch Mrs . Barnes and Mrs. Helm closely and keep a record of what they did and how well they did it. Belt followed Engle's instructions. He told Charles Koca, the supervisor in the silk screen area , what was going on and instructed him to observe and take notes also. He moved Terry Randel, the leadman in the silk screen area, to other duties . He instructed other employees in the silk screen area to refer any questions Mrs. Barnes and Mrs. Helm might ask about the work to him. All day September 2 and the morning of September 3, Belt acted as the supervi- sor, performing Koca's normal duties , and Koca acted as the leadman, performing Randel's usual duties. Belt as- signed Mrs . Helm and, a little later, Mrs. Barnes to the inspector job on the morning of September 2. They worked it for approximately a day and a half. They performed all the duties, including washing screens. All the work they did was on orders being processed for customers with the excep- tion of the screens they washed. Since there were no screens ready for washing in the normal course of events, Belt pre- pared some specially so that he could observe Mrs. Barnes' and Mrs. Helm's skill in that operation. Belt and Koca watched Mrs. Barnes and Mrs. Helm closely and recorded what they observed. Around noon on September 3 Belt returned Mrs. Helm and Mrs. Barnes to their usual jobs. Belt forwarded the data he and Koca had collected to Engle. Engle elected not to submit it to the Regional Direc- tor. Instead, he introduced it into evidence in this proceed- ing. 3. Analysis and conclusions Much of the protracted hearing in this proceeding was devoted to whether Mrs. Barnes, Mrs. Helm, and Mrs. Pat- terson were, in fact, qualified to do the work which Miss Casey actually did on June 24 and 25, 1971. Boxes of imper- fect covers which Mrs. Barnes and Mrs. Helm allegedly approved as flawless on September 2 and 3, 1971, were brought into the hearing room. Mrs. Barnes and Mrs. Helm took the witness stand on rebuttal to testify that covers exactly like these were indeed rejected by them. The proba- tive value of all evidence such as this was nil. In my view, as developed below, Case 17-CA-4762 does not turn on the qualifications of any or all of the three ladies named in the complaint . Even if each were infinitely better qualified than Miss Casey, the General Counsel would still not prevail. It is sufficient for the purpose of this "issue" to point out, first, that the parties are not in agree- ment as to the work at issue. In the General Counsel's view, all that was involved was the almost routine act of picking up covers from a conveyor belt and stacking them in boxes. In Respondent's view, in order to be qualified the three ladies would have had to demonstrate skill, knowhow, and physical capacity to do any of the chores the inspector might be called on to perform in the course of a day's work. Next, since Miss Casey, a capable inspector, could have been called upon on June 24 and 25, 1971, to do more than merely pick up covers and put them into boxes and since Mrs. Barnes and Mrs. Helm did not dispute the testimony of Belt, which I credit, about the generally inept manner in which they went about blocking, taping, and washing on September 2 and 3, 1971, it is obvious that they, at least, were not as qualified as Miss Casey for the inspector job. Finally, as to Mrs. Patterson, there is no basis in the record for finding that Belt knew prior to June 24 and 25 that washing of screens would not be required those days. There- fore, her allergy obviously disqualified her, for, even though the duties of the job were subsequently changed for her benefit to eliminate contact with the chemicals to which she is allergic, as of June 24 and 25 Respondent was under no legal duty to grant her such a favor. I find, therefore, that neither Mrs. Barnes, Mrs. Helm, nor Mrs. Patterson was as qualified as Miss Casey to do the work which Miss Casey might reasonably have been called on to perform as inspec- 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tor on the silk screen dryer on June 24 and 25, 1971, al- though they might have been able to do what Miss Casey actually did those days without any undue harm to Respondent's production. The General Counsel fails in both Cases 17-CA-4762 and 17-CA-4826 for lack of proof. The 8(a)(5) aspect of the former is predicated on the theory of a unilateral change in working conditions. In that respect, the evidence in the record is insufficient for me to find or infer that Respondent had any policy or practice of favoring unit employees over nonunit employees in the assignment of available work at times when temporary seasonal employees were part of the work force. The contract between Respondent and the Charging Party which expired on September 1, 1970, pro- vided for layoff and recall by seniority where, in Respondent's judgment, ability and physical fitness were relatively equal. Other provisions (one that "employees" generally will be transferred in order to avoid layoff; an- other that permanent seasonal employees shall be laid off prior to full-time employees) throw no light on the problem. In any event, the contract was not in effect at the time at issue. Therefore, there is no basis in the record for a finding that Respondent altered any existing condition of employ- ment when it assigned Miss Casey and not Mrs. Barnes, Mrs. Helm, or Mrs. Patterson to the 2 days' work at stake. The 8(a)(3) issue in both cases and the 8(a)(4) issue in Case 17-CA-4826 turn on Respondent's motive for treating the three ladies as it did. The General Counsel seeks a finding that Respondent was motivated in both situations by animus against the Charging Party. I have difficulty understanding the General Counsel's position since, having conceded the legality of Respondent's lockout, he would seem to have conceded Respondent's lack of animus in the total situation which existed. American Ship Building, supra, stands for the proposition that a lockout does not violate Section 8(a)(3) of the Act so long as an employer is motivat- ed solely by a desire to secure a favorable contract and not by a desire to interfere with his employees' Section 7 rights. If Respondent had no animus against the Charging Party in locking out, why would it have acted from such animus in dealing with its employees after they returned to work? (There is nothing in the record which would indicate any animus against Mrs. Barnes, Mrs. Helm, or Mrs. Patterson as individuals based on their union activities.) In any event, I think that precisely the opposite is the only inference that can be drawn from the record as a whole. In finding that Respondent entertains no animus against the Charging Par- ty, I have not overlooked the fact that the upshot of Respondent's confrontation with LPIU in 1970 was LPIU's loss of its status as bargaining representative for a unit of Respondent's employees. If that fact is entitled to any weight, it is minimal when weighed against all the evidence which establishes the meticulous care with which Respon- dent went about trying to win its bargaining war with the Charging Party by using its legal right to lockout employees and, when that weapon failed, by using what it considered to be its legal right to replace them with temporary employ- ees. The fact that, in my opinion, it had no legal right to take the latter step under the circumstances which existed falls far short of proving a plot to rid itself of the Charging Party once and for all. I find, therefore, the General Counsel has failed to prove that Respondent's motive for treating the three ladies as it did had anything whatsoever to do with their union membership or adherence or with animus Re- spondent felt against the Charging Party as an institution. Similarly, the 8(a)(4) aspect of Case 17 -CA-4826 is predicated on the theory that Respondent discriminated against Mrs. Barnes and Mrs. Helm because they were in- volved in Case 17-CA-4762. They were assigned to more onerous and demanding work for a day and a half, as Re- spondent readily admits. But it is obvious that Respondent's purpose in making those assignments was not to punish them because they gave testimony under the Act within the meaning of Section 8(a)(4) by cooperating with the General Counsel's investigation of Case 17-CA-4826. In fact, it is somewhat paradoxical for the General Counsel's complaint to emphasize the onerous and demanding nature of the silk screen inspectorjob in this case when the gravamen of Case 17-CA-4762 is that Respondent discriminated against the same two persons by denying them the same work at an- other time. Be that as it may, Respondent's sole motive for assigning Mrs. Barnes and Mrs. Helm to the job on Septem- ber 2 and 3 , 1971, and observing their performance closely was to collect data it could not acquire in any other way to counter the data (presumably the assertions of Mrs . Barnes and Mrs. Helm themselves to the Board 's investigator) on which the Regional Director had relied in deciding there was merit to the charge. In issuing his instructions to Re- spondent for the testing of Mrs. Barnes' and Mrs. Helm's qualifications, Engle did not go beyond the limits within which an attorney may lawfully operate in preparing a case for trial. In actually carrying out the tests , Belt did not go beyond Engle's instructions. There remains only the possibility that these cases in- volve a violation of Section 8(a)(3) because they fall in the category where encouragement or discouragement of union activity is such a natural consequence that no proof of discriminatory motive is required or that they involve an independent violation of Section 8(a)(1) where motive is immaterial. At the close of the hearing counsel for the Gen= eral Counsel took what I conceive to be the ultimate possi- ble position in these cases ; i.e., that Respondent's employees, when they returned from lockout , were entitled to all the work they were qualified to do over retained temporary employees regardless of Respondent's motive for giving the work to the replacements . I disagree. Absent a discriminatory motive, Respondent was not barred by the Act from assigning work to Norma Casey rather than to Irene Barnes, Mary Alice Helm, or Ruby Patterson on June 24 and 25, 1971, or from transferring Mrs. Barnes or Mrs. Helm to that same work on September 2 and 3 , 1971. Be- cause the General Counsel has failed to prove a condition of employment which was changed by Respondent in Case 17-CA-4762 and to establish a discriminatory motive in either case, I find that he has failed to prove a violation of Section 8(a)(1), (3), or (5) of the Act in Case 17-CA-4762 or a violation of Section 8(a)(1), (3), or (4) in Case 17- CA-4826. Upon the foregoing findings of fact, and on the entire record in this proceeding, I make the following: INTER COLLEGIATE PRESS 193 CONCLUSIONS OF LAW 1. Inter Collegiate Press, Graphic Arts Division-Sar- gent Welch Scientific Co. and Sargent Welch Scientific Co. is an employer within the meaning of Section 2(6) and (7) of the Act. 2. Bookbinders Local No. 60, International Brother- hood of Bookbinders (AFL-CIO), is a labor organization within the meaning of Section 2(5) of the Act. 3. By using temporary replacements for its locked-out employees from November 30, 1970, through May 31, 1971, Respondent has violated Section 8(a)(1) and (3) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The allegations that Respondent has violated Section 8(a)(1), (3), (4), and (5) of the Act contained in the com- plaints in Cases 17-CA-4762 and 17-CA-4826 have not been sustained. THE REMEDY Respondent contends that backpay for its locked-out employees would be an improper remedy because the Charging Party refused its request for an unconditional no- strike commitment, "a reasonable protective measure to safeguard Respondent's operations." In support of this proposition it cites Betts Cadillac 01ds, Inc., supra; Texas Gas Corporation, 136 NLRB 355: Indiana Ready Mix Corp., 141 NLRB 651; V-0 Milling Co., 43 NLRB 348, and Sawyer Stores, Inc., 190 NLRB No. 129. None bear any relation, factually, to the situation here. All are inapposite. In the latter three, especially, the union's offer to return to work was found to be conditional. Here, there was nothing condi- tional about the Charging Party's offer to return to work if Respondent ended the lockout. The only condition it sought to impose related to Respondent's request for a no-strike commitment. Respondent advances various subsidiary arguments. Relying on Packard Bell Electronics Corporation, 130 NLRB 1122, it contends that any backpay liability should be re- duced by the approximately $50,000 it expended in extra subcontracting during the lockout . Relying on H. K. Porter Co. v. N.L. R.B., 397 U.S. 99, and Ex-Cell-0 Corp., 185 NLRB No. 20, it argues that a backpay order would be based on a speculation that Respondent would have ended the lockout if it had not decided to use temporary replace- ments. In support of this position, it seeks a finding that the record justifies an inference that Respondent would have taken a strike at least until February 1, 1971, the beginning of the busy season , thus limiting backpay to the February 1-May 31, 1971, period if I reject the concept that there is no showing that locked-out employees would have had earnings from November 30, 1970, on but for Respondent's unfair labor practice. Finally, Respondent argues that any liability for backpay should be limited to profits , if any, earned by Respondent as a result of its use of temporary replacements; i.e., profits earned during the period Novem- ber 30, 1970, through May 31 , 1971. These arguments are equally without merit. In my view, Respondent hit the nail on the head when, in its brief, it stated: Back pay is applicable only when the employees make clear they are willing to work and to remain at work, when they have some legal right to work and when they show some loss in earnings as the result of being denied a legal right to work. All those conditions have been met here. Therefore, I will recommend backpay for all locked-out employees for the November 30, 1970-May 31 , 1971, period, computed on a quarterly basis plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing &`Heating Co., 138 NLRB 716, as well as that Respondent cease and desist from the unfair labor practice found and post an appropriate notice. Since the record indi- cates that all the locked-out employees have already been offered reinstatement to their former jobs and that those who accepted it have already been restored to their seniority and other rights and privileges, I will not include such provi- sions, customary in discrimination cases, in my recommen- dations. [Recommended Order omitted from publication.]