Movers and Warehousemen's Assn. of Metropolitan Washington, D.C., Inc.

356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Movers and Warehousemen's Association of Metro- politan Washington, D.C., Inc and its Employer Members, Jointly and Severally: Bekins Moving & Storage Co ; Colonial Storage Co.; District Moving & Storage Inc., Fidelity Storage Co., Lions Trans- fer Co.; Merchants Storage Co. of Va ; Merchants Transfer & Storage Co.; Columbia Van Lines Corp.; Security Storage Co. of Washington; Smith's Moving & Storage Co., Inc, United States Moving & Storage Co., Inc.' and Local Union No. 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case 5-CA-7232 June 3, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING, JENKINS, AND PENELLO On September 15, 1975,2 Administrative Law Judge Arthur Leff issued the attached Decision in this proceeding Thereafter, the General Counsel and the Charging Party (herein also called the Union) filed exceptions and supporting briefs, Respondent filed cross-exceptions and a brief in support thereof, and Charging Party filed a reply brief to Respondent's cross-exceptions The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, except as modified herein The pertinent facts are fully set forth by the Ad- ministrative Law Judge Briefly, for more than 20 years the members of MAWA and the Union have enjoyed a stable bar- gaining relationship The collective-bargaining agree- ment in effect just prior to the events herein was due i Herein collectively referred to as Respondent or MAWA As noted by the Administrative Law Judge in fn 2 of his Decision, MAWA did not represent Merchants Transfer & Storage Co in the negotiations for the 1975 collective-bargaining agreement Furthermore , the statement made at the hearing by Respondent 's counsel that the inclusion of that company in the complaint was erroneous was undisputed Accordingly, in the absence of any allegation or evidence as to the individual conduct or responsibility of the said company, and since no exception has been filed to the Administra- tive Law Judge's omission of Merchants Transfer & Storage Co from his recommended Order, we make no findings concerning it and it is not sub- ject to the remedial Order herein 2 All dates herein are in 1975 unless otherwise indicated 3 The Administrative Law Judge states in his Decision that `the General Counsel stipulated that [Respondent and Charging Party ] bargained in good faith" during their contract negotiations in April While the record fails to establish such a stipulation, it does show that General Counsel offered to stipulate that both parties were attempting to negotiate an agreement during the month of April, but the Charging Party declined to join therein to expire March 31 Consequently, on March 10 the parties held their first meeting to negotiate a new agreement At that meeting, one of the Union's nego- tiators, Roland Warren, told the MAWA representa- tives that, because of the employees' dissatisfaction with the procedure used in ratifying the then current contract, that procedure would not be used to ratify the contract being negotiated At the fourth bargain- ing session, on March 25, Respondent made a "final" offer Union President De Brouse agreed that, pur- suant to a provision of the Union's constitution, he would submit the offer to the membership but would not recommend its acceptance On March 27, MAWA sent its "final" offer in writing to the Union, along with a letter stating that the offer would be retroactive if the Union agreed to employee ratification by a mail ballot referendum as set forth in the letter De Brouse subsequently tele- phoned MAWA's chief negotiator, Virgil Seward, and rejected the proposed ratification procedure Thereafter, on March 31, Seward wrote to De Brouse stating that, unless the Union notified MAWA that day that it would submit Respondent's offer to the employees according to the procedure specified in the March 27 letter, "the Association's membership will be forced to terminate operations by bargaining unit personnel on Tuesday, April 1, 1975 " In a telephone conversation that same day, De Brouse told Seward that the Union would consider the threatened lockout an unfair labor practice Also on March 31, De Brouse sent a telegram to MAWA's attorney in which he stated that "if the Moving and Storage Association locks out its employees it is in violation of their agreement and the contract will not be settled until each employee is paid for all lost earnings " On April 1, all bargaining unit employees were laid off That same day, in response to the above-quoted telegram, Seward hand delivered a letter to De Brouse, in which Seward expressed MAWA's posi- tion that it was not in violation of its collective-bar- gaining agreement or the NLRA and that "none of the employees involved are entitled to backpay " It appears that by the following day, April 2, MAWA had become concerned that the lockout might constitute an unfair labor practice Conse- quently, on that date, after consultation with counsel, Seward sent another letter to De Brouse, stating in part In response to your telephone call of yesterday, it is important to reiterate the reason why the employers found it necessary to terminate their operations on April 1, 1975 It appears that you feel that the employers temporarily terminated their operations because Local 639 would not 224 NLRB No 64 MOVERS AND WAREHOUSEMEN'S ASSN OF WASHINGTON, D C 357 agree to a secret ballot, FMCS supervised, refer- endum as ratification procedure for the final employer offer It is the employers' position that you are free to use whatever means you deem appropriate to ratify the employers' final offer This is a matter solely up to the Union in han- dling internal affairs The letter concluded with the statement that the lockout "continues only because there is no labor contract We remain available to meet with represen- tatives of the Local in order to resolve this matter " In the meantime, the unit employees voted to re- ject MAWA's contract offer on April 2 Thereafter, the parties held several bargaining sessions, including one on April 2 after the employees' rejection of MAWA's proposal At this meeting De Brouse asked Seward to end the lockout pending negotiations and Seward replied that "we would not end the lockout until we negotiated " The parties reached a tentative agreement on April 24, which was ratified by the membership on April 28 The lockout ended that same day The Administrative Law Judge found that MAWA's threat to lock out its employees on March 31 and its subsequent lockout of the employees on April 1 had a dual objective-to bring economic pressure to bear on the Union in support of MAWA's bargaining position and to coerce the Union into adopting MAWA's proposed procedure for ratification by unit employees of the contract being negotiated The Administrative Law Judge fur- ther found that the ratification procedure was a non- mandatory subject of bargaining and that Respon- dent could not lawfully lock out its employees in support of its demands on such a subject He there- fore concluded that the threat to lock out violated Section 8(a)(1) and (5) of the Act and that the lock- out itself violated Section 8(a)(1), (3), and (5) of the Act We agree with these findings The Administrative Law Judge further found that MAWA retracted its nonmandatory demand regard- ing the contract ratification procedure and thus cured the lockout of its initial illegality Accordingly, he concluded that the remainder of the lockout was solely in support of MAWA's economic bargaining position and was therefore lawful We disagree with the conclusion that the lockout was converted to law- ful conduct In our view, a lockout unlawful at its inception retains its initial taint of illegality until it is terminat- ed and the affected employees are made whole In this regard, contrary to the Administrative Law Judge, we find analogous such cases as Retail Clerks International Association, Local No 1179, AFL (Cali- fornia Association of Employers), 109 NLRB 754 (1954), and Lawrence Typographical Union No 570, affiliated with the International Typographical Union, AFL-CIO (Kansas Color Press, Inc), 158 NLRB 1332 (1966) In Retail Clerks Local 1179, the Board held that a strike which was unlawful at its commencement be- cause the union failed to give notice to the Federal Mediation and Conciliation Service as required by Section 8(d) of the Act was not rendered lawful by the subsequent giving of such notice In so holding, the Board emphasized that "To permit the Union to continue unhampered the very strike which consti- tutes the heart of its unlawful conduct would be to countenance its continued flaunting of an explicit proscription of the statute " 4 Likewise, in Lawrence Typographical Union No 570, the Board adopted without comment the Trial Examiner's finding that a strike which initially violated Section 8(b)(7)(B) of the Act because it commenced within 12 months of a valid election continued to be unlawful after the ex- piration of the 12-month period Although there was no discussion of how the strike could be cured of its illegality, implicit in the Board's decision is the con- clusion that action which violates the Act at its com- mencement continues to be unlawful for its entire duration We cannot agree with our dissenting colleague that these cases are inapposite to the instant situation be- cause they involved strikes which failed to meet stat- utory conditions precedent for a lawful strike In our view, it is wholly immaterial to a determination of continuing impact of illegal activity whether the ac- tivity was initially unlawful because it violated an affirmative requirement of the statute or because its motivation was unlawful This view is supported by the Board's decision in The Arundel Corporation, 210 NLRB 525 (1974) In that case the Board found that the union's strike commenced in violation of the par- ties' no-strike agreement and did not become a law- ful economic strike after the no-strike provision for- mally expired because the union had not corrected its unprotected action by terminating the strike The Board further held that the unprotected strike consti- tuted a valid affirmative defense to the union's charge that the company unlawfully refused to bar- gain The General Counsel had argued that it would be futile to require the union to abandon the strike on the expiration date because the strike could im- mediately be resumed as a protected economic strike The Board found no merit to this position, holding that it would be wholly unwarranted and speculative to assume that, had the strike terminated and bar- gaining resumed, the parties would not have reached 4 109 NLRB at 759 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement, which would obviate the need for the strike We conclude that similar considerations apply in the instant case The record shows that MAWA failed to dissipate the effects of its unlawful lockout and to restore its employees to the status quo ante Thus, MAWA failed to offer reinstatement to the locked-out em- ployees until April 28, never offered backpay for the first 2 days of the lockout, and never acknowledged its own wrongdoing to the employees with regard to the lockout To the contrary, by the letter of April 1 referred to above, MAWA stated its position that the lockout violated neither the parties' collective-bar- gaining agreement nor the Act and that the locked- out employees were not entitled to backpay In addi- tion to MAWA's failure to affirmatively remedy the illegal lockout, record evidence shows that the injec- tion into bargaining of the lockout issues may well have had some effect on negotiating a new contract MAWA acknowledged in the April 1 letter that the Union had taken the position that a lockout would violate the collective-bargaining agreement and that a new contract could not be negotiated until the locked-out employees were paid their lost earnings The union negotiators called a union membership meeting at the advent of the unlawful lockout to dis- cuss, inter aha, the charge the Union was filing Fi- nally, the union president, in the March 31 telegram quoted above, demanded at the lockout's outset that MAWA end the lockout and reinstate the employees in order for the negotiations to continue In these circumstances, without a cessation of the lockout and a restoration of the status quo ante, it is difficult to conclude that any bargaining which en- sued was not adversely affected, since the Union was required to negotiate with MAWA and to ratify the contract from a weakened position induced by the unlawful lockout and the injection of the lockout- related issues into the bargaining process To deny that these issues complicated negotiations, which were found by the Administrative Law Judge to have gone smoothly until March 25, would be to ignore collective-bargaining realities Similarly, to presume that, if MAWA had offered reinstatement to the un- lawfully locked-out employees on April 2, the lock- out would have immediately been resumed on April 3 is speculative Considering the parties' long history of peaceful labor relations, the smooth negotiations through March 25, the 2 months remaining until the busy season, and the Union's recognition that MAWA could, after a hiatus, lawfully lock out for economic reasons, it is not unlikely that collective bargaining free of the unfair labor practices could have resulted in an earlier contract In any event, the burden must be on Respondent to show that its fail- ure to restore the status quo ante had no adverse im- pact on the subsequent collective bargaining For "it rest[s] upon the tortfeasor to disentangle the conse- quences for which it was chargeable from those from which it is immune " N L R B v Remington Rand, Inc, 94 F 2d 862, 872 (C A 2, 1938), cert denied 304 U S 576 Here no such showing has been made Accordingly, based on all the foregoing, we con- clude that the Administrative Law Judge erroneously found that Respondent's withdrawal of its nonman- datory demand cured the lockout of its initial illegali- ty To the contrary, we conclude that the lockout violated Section 8(a)(1), (3), and (5) of the Act for its entire duration AMENDED CONCLUSION OF LAW Substitute the following for the Administrative Law Judge's Conclusion of Law 4 "4 By locking out the employees in the appropri- ate unit on April 1, 1975, because, inter alia, the Union failed and refused to submit Respondent's fi- nal contract offer for ratification by the unit employ- ees in the manner that Respondent had specified, and by continuing said lockout until April 28, 1975, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act " AMENDED REMEDY Having found that Respondent unlawfully contin- ued the April 1, 1975, lockout until April 28, 1975, we shall, in addition to the remedy recommended by the Administrative Law Judge, further order that Re- spondent make such employees whole for any loss of pay they may have suffered by reason of such unlaw- ful conduct, by payment to each of them of a sum of money equal to that which he or she would have normally earned as wages from April 1 to April 28, 1975, less his or her net earning during said period, such sums to be computed in the manner set forth in F W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co, 138 NLRB 716 (1962) Additionally, because Respondent's violations of Section 8(a)(3) go to the very heart of the Act, we shall issue a broad order requiring Respondent to cease and desist from in any other manner infringing upon the rights guaranteed to its employees by Sec- tion 7 of the Act N L R B v Entwistle Mfg Co, 120 F 2d 532 (C A 4, 1941) MOVERS AND WAREHOUSEMEN'S ASSN. OF WASHINGTON, D C. 359 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that the Respondent, Mov- ers and Warehousemen's Association of Metropoli- tan Washington, D.C. Inc. and its Employer Mem- bers, Jointly and Severally: Bekins Moving & Storage Co., Colonial Storage Co., District Moving & Storage Inc., Fidelity Storage Co., Lions Transfer Co., Merchants Storage Co. of Va., Columbia Van Lines Corp., Security Storage Co. of Washington, Smith's Moving & Storage Co., Inc., and United States Moving & Storage Co., Inc., their respective officers, agents, successors, and assigns, shall, jointly and severally, take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 1(d): "(d) In any other manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act." 2. Substitute the following for paragraph 2(a): "(a) Make whole all employees in the aforesaid appropriate bargaining unit for any loss of pay they may have suffered from April 1, 1975, to April 28, 1975, by reason of Respondent's unfair labor practic- es herein found, in the manner set forth in the section above entitled `The Remedy.' " 3. Substitute the attached notice for that of the Administrative Law Judge. CHAIRMAN MURPHY, concurring in part and dissent- ing in part: I agree with my colleagues and with the Adminis- trative Law Judge that Respondent's threat to lock out employees on March 31, 1975, violated Section 8(a)(1) and (5) of the Act and that the subsequent lockout on April 1 violated Section 8(a)(1), (3), and (5) of the Act. Contrary to the majority, however, I would find, in agreement with the Administrative Law Judge, that Respondent's retraction on April 2 of its nonmandatory bargaining demand cured the lockout of its initial illegality. The majority does not dispute the Administrative Law Judge's conclusion that: [B]argaining lockouts are presumptively privi- leged even when they occur prior to a bargain- ing impasse. That presumption may be over- come only if it is shown by all the surrounding circumstances that the lockout was motivated, wholly or in significant part, by a purpose to evade the duty to bargain, to discourage union activity, or to achieve some other objective that is inherently destructive of employee rights.' In this case it is clear that after April 2 the lockout was solely motivated by Respondent's desire to reach a contract prior to the start of the busy season around May 15. Under these circumstances, I agree with the Administrative Law Judge that it would "ex- alt form over substance" to require Respondent to cease the lockout and return to the status quo ante, only to resume the lockout a day, or perhaps even an hour, later. Contrary to the majority, and in agreement with the Administrative Law Judge, Retail Clerks Local 1179, 109 NLRB 754, and Typographical Union No. 570, 158 NLRB 1332, are neither analogous to the instant case nor precedent for the majority's holding herein. In both those cases, the strikes at their incep- tion failed to meet specific statutory conditions pre- cedent to a lawful strike. In Retail Clerks, supra, the union commenced a strike without giving the notice required by Section 8(d) of the Act to the Federal Mediation and Conciliation Service. In Typographi- cal Union No. 570, supra, the strike was unlawful be- cause it commenced within 1 year of a valid election. Thus, to the extent that a lockout is the analogue of a strike, these cases would be apposite if the lockout herein violated some affirmative requirement speci- fied in the statute. That is not, however, the situation presented by this case, for here the lockout was ini- tially unlawful because, and only becuase, it was in part unlawfully motivated. I would make a distinction between continuation of activity unlawful at its inception because it vio- lates an express statutory command, and otherwise lawful activity which constitutes an unfair labor practice solely because one of its dual objectives is unlawful. In the former situation, I see no method by which the taint of illegality may be removed short of ceasing the unlawful conduct. The illegality in the latter situation, however, may be cured, in my view, by a clear showing that the unlawful motivation no longer exists. Such a showing was unquestionably made in this case by the April 2 letter, quoted by the majority, in which Respondent specifically retracted its unlawful objective for the lockout. Similarly, The Arundel Corporation, 210 NLRB 525, upon which the majority also relies, is distin- guishable. In that case, the Board majority found that a strike which commenced in violation of a con- tractual no-strike clause and continued after the provision's stated expiration date constituted a valid defense to a charge that the respondent employer un- 3 ALJD,III,E,3, par 3 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lawfully refused to bargain The majority expressly found, however, that the circumstances of that case indicated that the parties contemplated extension of the no-strike clause for a reasonable period after its specified termination date and that- [t]he exact terminal date of the no-strike exten- sion herein is indeterminable because the Charg- ing Party's unprotected strike in repudiation of its agreement removed Respondent's obligation to resume bargaining over the reopener issues and it will have no obligation to engage in such bargaining until the Charging Party restores the status quo ante by terminating its un- protected strike [Footnote omitted ] 6 Thus, it appears that the holding in Arundel Corpora- tion was predicated at least in part on the majority's conclusion that the union, by its own action in violat- ing the no-strike clause, rendered it impossible to fix a date for the provision's expiration In the instant case, however, there is no basis for a similar conclu- sion inasmuch as Respondent plainly and effectively retracted its unlawful demand on a specific date Accordingly, as there is no precedent for the majority's holding in this case and since I do not believe that the majority decision effectuates the pur- poses of the Act, I respectfully dissent from my col- leagues' conclusion that the lockout remained unlaw- ful throughout its entire duration 6 210 NLRB at 527 I note, furthermore, that Member Jenkins who has joined the majority herein, dissented in Arundel APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT engage in, or threaten to engage in, lockouts, layoffs, or other measures adversely affecting the earnings of the employees in the appropriate bargaining unit described below, where an object thereof is to force or require Local Union No 639, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor or- ganization, to adopt methods or procedures pro- posed by us for the ratification of contract of- fers WE WILL NOT discourage membership and ac- tivities in Local Union No 639, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or any other labor organization, by discriminating in regard to the hire or tenure of employment, or in any other manner in regard to any term or condition of employment, of employees in the appropriate bargaining unit described below WE WILL NOT refuse to bargain collectively in good faith with the aforementioned Union, as the exclusive bargaining representative of all our employees in the appropriate bargaining unit de- scribed below, by engaging in, or threatening to engage in, lockouts, layoffs, or other retaliatory measures adversely affecting the earnings of the bargaining unit employees, where an object thereof is to force the Union to adopt methods or procedures proposed by us for the ratification of contract offers WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the National Labor Relations Act WE WILL make whole the employees in the bargaining unit described below for any loss of pay suffered by them from April 1 to April 28, 1975, by reason of our lockout of the employees, found by the Board to have been unlawful dur- ing that period The bargaining unit is All drivers, helpers, packers, freighters, ware- housemen, tow-motor operators, foremen, and such other employees as may be presently or hereafter represented by the Union, but ex- cluding clerical employees, guards and super- visors as defined in the Act, who are engaged in household moving and storage within the jurisdiction of the Union, and who are em- ployed by Employers (including those named below) that are members of, and are repre- sented for the purposes of collective bargain- ing with the Union by, Movers and Warehousemen's Association of Metropolitan Washington, D C, Inc MOVERS AND WAREHOUSEMEN'S ASSOCIATION OF METROPOLITAN WASHINGTON, D C, INC AND ITS EMPLOYER MEMBERS, JOINTLY AND SEVERALLY BEKINS MOVING & STORAGE CO , COLONIAL STORAGE CO , DISTRICT MOVING & STORAGE, INC , FIDELITY STORAGE CO , LIONS TRANSFER CO , MERCHANTS STORAGE CO OF VA , COLUMBIA VAN LINES CORP, SECURITY STORAGE CO OF WASHINGTON, SMITH'S MOVING & STORAGE CO, INC, UNITED STATES MOVING & STORAGE CO , INC MOVERS AND WAREHOUSEMEN'S ASSN OF WASHINGTON, D C 361 DECISION STATEMENT OF THE CASE ARTHUR LEFF, Administrative Law Judge Upon a charge filed by the above-named Union on April 3, 1975, the Gen- eral Counsel of the National Labor Relations Board, by the Regional Director of Region 5, issued a complaint, dat- ed May 7, 1975, against the above-named Association and its Employer Members, jointly and severally (herein collec- tively referred to as Respondent), alleging that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the National Labor Relations Act in respects to be specified below A hearing was held at Washington, D C, on May 19 and 20, 1975 Briefs were filed by the parties on July 1, 1975 Upon the entire record in the case and from my observa- tion of the witnesses, I make the following FINDINGS OF FACT I THE BUSINESS OF RESPONDENTS Movers and Warehousemen's Association of Metropoli- tan Washington, D C, Inc, herein interchangeably re- ferred to as the Association or MAWA, is a District of Columbia corporation which exists for the purpose of ne- gotiating and entering into collective-bargaining agree- ments with the Union on behalf of its employer members The Association's members are engaged in the assembly, packing, storage, and local and interstate transportation by motor carrier of household goods, office equipment, and furniture During the past 12 months, a representative peri- od, the Association's members individually and collectively had gross revenues exceeding $50,000 from the interstate transportation of household goods, office equipment, and furniture The complaint alleges, the answer admits, and it is found that Respondent is an "employer," as defined in Section 2(2) of the Act, engaged in "commerce" and in operations "affecting commerce," within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED Local Union No 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union) is a labor organization, within the meaning of Section 2(5) of the Act and Conciliation Service, and (b) discriminatorily locking out such employees on April 1, 1975, and continuing that lockout in effect until April 28, 1975, because the Union failed and refused to submit the Respondent's "final" con- tract offer for ratification in the particular manner speci- fied by Respondent Respondent in addition to denying the aforesaid allega- tions of the complaint, affirmatively alleges in its answer that the sole purpose of the lockout which began on April 1, 1975, was "to bring economic pressure in support of [the Employer's] bargaining position, and to avoid a strike dur- ing the Employer's busy summer season " Alternatively, it is Respondent's position that, even if the lockout is found to have been unlawful at its inception, it ceased to be such on April 2, 1975 B Some Background Facts The Union is the recognized exclusive bargaining repre- sentative of an appropriate multiemployer bargaining unit composed of the employees I employed by MAWA mem- bers who have authorized that Association to represent them in the negotiation and/or execution of collective-bar- gaining contracts with the Union 2 MAWA was not formally organized as an employer as- sociation until 1969 The record shows, however, that for more than 20 years it had been the practice of the union- ized moving companies in the Washington, D C, area, in- cluding the companies that now are members of MAWA, to bargain as a group with the Union That bargaining relationship has been marked by stability and labor peace It is undisputed that throughout that 20-year history of bargaining the Union has never engaged in a strike or work stoppage to support its bargaining demands-and this even though there were some occasions during that period when negotiations for a successor agreement were not finally completed until some time after the expiration of the previ- ous agreement The moving industry in the Washington, D C, area is characterized by seasonal trends Most of the industry's business is done between May 15 and October 15 The collective-bargaining agreements prior to 1969 contained a May 31 expiration date During the 1969 negotiations, the expiration date was changed to March 31, and has re- mained so in the labor contracts since negotiated The change in date was effected at the request of the employers who wished to avoid contract negotiations during their peak busy period when they were most vulnerable to a strike A significant amount of business available for moving III THE UNFAIR LABOR PRACTICES A The Issues The complaint alleges in substance that Respondent vio- lated Section 8(a)(1), (3), and (5) of the Act by (a) threaten- ing to lock out employees of Respondent represented by the Union unless the Union should agree to submit Respondent's "final" contract offer for ratification by a mail ballot vote to be conducted by the Federal Mediation i All drivers, helpers, packers, freighters, warehousemen, tow-motor oper- ators foremen, and such other employees as may be presently or hereafter represented by the Union, but excluding clerical employees, guards, and supervisors as defined in the Act, engaged in household moving and storage within the jurisdiction of the Union 2 The collective-bargaining agreement which was entered into between the MAWA and the Union following the events here in controversy identi- fies as the MAWA-represented employers in the negotiation of that agree- ment all of the companies listed in the caption of this case, except for Merchants Transfer and Storage Co, which, the record shows, is the parent company of Merchants Storage Co of Virginia 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD companies in the Washington, D C, area consists of Gov- ernment contract work which is obtained on bid Three of the major Government contracts, for State Department outbound, inbound, and baggage moving work, were to expire on February 28, 1975, with bids for new contracts due sometime before that date Before that due date, sever- al of the MAWA members, acting as a group, arranged with the State Department to extend the term of the old contracts to April 30, 1975, and the bidding date on the new contracts to April 15, 1975, so that before submitting their bids they might be able to know what their future wage costs would be under the new labor contract with the Union that was then coming up for negotiations The Teamsters International constitution requires that collective-bargaining contracts negotiated by Teamsters lo- cal members must be ratified by the union members in- volved in the negotiations before such contracts can be- come effective Normally a majority vote is required for acceptance or rejection Under certain circumstances, how- ever, i e, when a strike vote is contemplated, an offer can be rejected only by a two-thirds vote of the affected mem- bership The applicable provisions are spelled out in article XII, section 1(b), of the Teamsters constitution In relevant part, they are as follows (b) Contracts may be accepted by a majority vote of those members involved in negotiations and voting, or a majority of such members may direct further negoti- ations before a final vote on the employer's offer is taken, as directed by the Local Union Executive Board When in thejudgment of the Local Union Ex- ecutive Board, an employer has made a final offer of settlement, such offer must be submitted to the in- volved membership and can be rejected only by a two- thirds (2/3) vote of the members involved in the nego- tiations and voting or responding to a referendum mail ballot If a settlement cannot be reached, the Lo- cal Union Executive Board shall order a secret ballot to be taken and it shall require a two-thirds (2/3) ma- jority of the members of the Local Union involved in such negotiations and voting to adopt a motion to strike The failure of such membership to author- ize a strike upon rejecting the employer's last offer shall require the Local Union Executive Board to ac- cept such last offer or such additional provisions as can be negotiated by it The basic issue in this case relates to the legality of a lockout which occurred in the course of negotiations be- tween MAWA and the Union for a new labor contract to supersede the earlier 1972-75 contract between the same parties which terminated on March 31, 1975 Negotiations for that earlier contract had been conducted on behalf of the Union by one of its business agents, Everhart Frank De Brouse the president and top official of the Union, had not participated in those negotiations The MAWA's "fi- nal" proposal for that contract had been submitted to the unit employees for ratification under a voting procedure known as a "barn vote", i e , one in which the balloting was conducted at the places of employment of the unit employees, rather than at the union hall Moreover, under the voting procedure used in 1972 a two-thirds negative vote was required for rejection of the MAWA "final" offer The 1972-75 contract had been ratified under that proce- dure although, in fact, less than a majority had voted to accept the contract De Brouse had been displeased with the 1972 contract, particularly with certain of its health and welfare and pension provisions In conversations with management representatives during the term of the 1972- 75 contract, De Brouse had frequently voiced his displea- sure with that contract, as well as with the voting proce- dure that had been used for its ratification, and had stated that he would never allow a barn-by-barn vote to happen again De Brouse designated Business Agent Roland Warren in the place of Everhart as the union agent who was to con- duct the 1975 negotiations In preparing for the 1975 nego- tiations, Warren met with the Union's shop stewards in the industry who complained to him about the voting proce- dures that had been used in 1972, claiming that the vote in 1972 had been improperly influenced by employer inter- vention Warren pledged that votes on the 1975 contract would take place in the union hall and not at the individual "barns" of MAWA members At the first negotiating meet- ing on the 1975 contract, Warren informed the MAWA representatives of the commitment he had made C Events Leading to the Lockout on April 1 About 90 days before the March 31, 1975, expiration date of the 1972-75 contract, the Union served notice on Respondent of its desire to modify the terms of that con- tract, stating that it would send its proposal to Respondent "in the near future " It had been the practice of the parties in the past to start actual negotiations for a new contract about a month before the expiration date of the old con- tract In 1975, the MAWA did not press for an earlier start- ing date On February 28, 1975, Virgil Seward, the chair- man of the MAWA negotiating committee, in a letter to Union Business Agent Warren, suggested that the first ne- gotiating meeting be scheduled for the first week in March, expressing his hope that "this early start in the negotia- tions" would produce a mutually beneficial agreement On March 6, Warren sent Respondent a copy of the Union's proposals The first meeting was scheduled for the follow- ing Monday, March 10 Four negotiating sessions were held prior to the April 1 lockout-on March 10, 18, 20, and 25, each one lasting more than 4 hours, and at least one for the entire day Warren acted as the negotiator for the Union during the first three meetings, and was joined at the March 25 meet- ing by De Brouse 4 Virgil Seward, an officer of Merchants Storage Co of Virginia, served as the chairman of the MAWA negotiating committee Respondent contended at the hearing that the Union at these meetings deliberately engaged in stalling tactics, disclosing a purpose to extend 3 The adjournment from March 10 to 18 was at the request of the MAWA negotiator The adjournment from March 20 to 25, was requested by the Union because of the interim unavailability of De Brouse ° At the March 10 meeting Warren had informed the MAWA representa- tives that De Brouse would appear at a later stage of the negotiations since Warren felt he lacked sufficient experience with the moving and storage industry to conclude an agreement by himself MOVERS AND WAREHOUSEMEN'S ASSN OF WASHINGTON, D C the negotiations into the busy season The record does not support that contention The March 10 meeting was devoted mainly to an item- by-item review of the Union's proposals At this meeting Warren assured the MAWA representatives, in response to their inquiry, that only employees of the MAWA members involved in the negotiations would be permitted to partici- pate in ratification votes But at the same time he made clear that the Union intended this time to conduct such votes at the union hall, and not at the barns as in 1972 The March 18 and 20 meetings were taken up with the consideration of noneconomic issues The MAWA yielded on some of the Union's demands, and others were dropped by the Union Agreement was reached on a substantial number of matters, including among them items relating to shop steward seniority, the posting of seniority lists, em- ployee warning notices, uniform work rates, funeral leave, meal allowances, petty cash advances, and vacations By the end of the March 20 meeting, which lasted all day, the negotiating parties had resolved almost all the noneconom- ic issues arising from the Union's proposals At the beginning of the March 25 meeting, the first in which De Brouse participated, the Union withdrew three of its noneconomic demands not theretofore resolved That meeting was confined almost entirely to the consideration of wage rates, employer contributions for health and wel- fare and for pensions, and contract duration Prior to the March 25 meeting, the MAWA had not submitted any pro- posals of its own, and discussion of economic items had been deferred pending resolution of other items at issue The Union in its initial proposal presented on March 6 had asked for a $2 hourly increase for drivers and $1 50 for helpers, apparently on the basis of a 1-year contract, as well as for increases in the amount of the employers' con- tributions for health and welfare and pensions At the March 25 meeting, the MAWA offered at first a 20-cent- per-hour wage increase for all employees in each year of a 3-year contract, as well as certain increases in employer contributions for pensions and health and welfare, increas- es which, while substantial in amount, were less than those asked by the Union The Union rejected that offer as un- realistic, and later in the meeting counterproposed a 2-year contract with yearly increases of 75 cents per hour for all employees After further discussion, in the course of which the MAWA made an intermediate offer which was also rejected, the MAWA representatives caucused and then came back with a wage fringe benefit package on all eco- nomic items in dispute, declaring that this was their "final" offer The "final" offer proposed, inter alga, a 3-year con- tract with annual wage increases of 30 cents, 30 cents, and 30 cents for drivers and 30 cents, 30 cents, and 20 cents for helpers That offer was made orally, but the MAWA repre- sentatives stated that it would be drawn up in written form, covering all items not previously settled, and would be sub- mitted to the Union so that it might be presented to the unit employees for their acceptance or rejection De Brouse agreed to the request of the MAWA negotia- tors that Respondent's "final" offer be submitted to the bargaining unit employees for a vote But at the same time he made clear that he would not recommend the offer for acceptance Seward for MAWA requested that the vote be 363 conducted in the barns in accordance with the procedure the Union had adopted for the ratification of the 1972 con- tract, stating, inter aha, that "we couldn't get a contract at the hall," if De Brouse was unwilling to "sell" it But De Brouse rejected that request, reminding Seward that War- ren had made a commitment that any votes that were to take place on the question of contract ratification would be conducted at the union hall No suggestion was made at this meeting by the MAWA representatives for a mail bal- lot When pressed for a date when the matter would be brought to a vote, De Brouse stated that because of the upcoming holiday weekend 5 and his personal commit- ments, the earliest date on which the vote could be held would be the following Tuesday, April 1, 1975 As the March 25 meeting was about to break up, either Warren or De Brouse, noting that March 31 would mark the expiration date of the then existing contract and that it now appeared that a contract could not be consummated by that date, asked what the MAWA position was on retro- activity Seward replied that he had no authority from the Association to agree on retroactivity but that he would take up the matter with the Association's members and would let the Union know after he had done so 6 On March 27, 1975, the Association transmitted to the Union the complete written summary of the MAWA "fi- nal" offer which at the March 25 meeting it had told the Union it would prepare The document was entitled "Final Employer Offer " The Association in its letter to the Union accompanying the written statement of its offer alluded to the Union's request for retroactivity and set forth its posi- tion on that question as follows At the conclusion of the employers presentation on March 25, 1975, and after an extensive discussion of the offer, the Local Union's Bargaining Committee re- quested that the employer committee agree to retroac- tivity That is, the Local Union indicated that it would be physically impossible to call a meeting of the em- ployees covered by the moving and storage collective- bargaining agreement until at least Tuesday, April 1, 5 March 28 was Good Friday, and the Union s offices were to be closed for a holiday beginning that afternoon and extending through Easter Mon- dai March 31 Seward testified that when he told De Brouse that he would have to submit the question of retroactivity to the Association's members De Brouse remarked, If you don t agree to retroactivity we will have to hit the streets April I " Warren disclaimed any recollection of such a statement having been made and De Brouse, although not questioned specifically about that statement, testified in general terms that there was no 'discus- sion of striking at the meeting Although Seward s testimony in a number of other respects revealed him to be less than a fully credible witness his testimony in this respect was corroborated by Fleming Newboldt a director of Merchants Transfer and Storage Co who had been present as an ob- server at the March 25 meeting Newboldt impressed me as a reliable wit ness, and his testimony evidenced a vivid recollection of this incident I credit Seward s testimony as corroborated by Newboldt and find that De Brouse made the remark attributed to him by Seward and Newboldt Subse- quent events reveal however, that Respondent did not really believe that the Union would strike on April 1 if retroactivity was not earlier agreed on Quite clearly Respondent would not have locked out its employees on April I had it believed they were about to strike that day Tne record shows moreover that the MAWA representatives were aware at that time that a strike could not be called by the Union unless and until the MAWA `final" offer was first submitted to a ratification vote and rejected by a two thirds negative vote 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1975, and therefore requested that the employer com- mittee agree to make the increases retroactive The Employer Negotiating Committee informed the Local that they would take the request for retroactivity un- der advisement and provide the Local with an answer as soon as possible This letter is to inform you that the Employer Com- mittee will agree to retroactivity of the final offer con- tained herein, from April 1, 1975, through and includ- ing April 7, 1975, subject to Local 639 submitting this offer as a final offer of settlement to the employees covered by the collective-bargaining agreement through a referendum mail ballot pursuant to the terms of Article XII, Section 1(b) of the International Constitution Under the terms of this Article the offer can be rejected only by a two-thirds (2/3) vote of the members involved in the negotiations and voting or responding to the referendum mail ballot The ballot- ing of the membership would be conducted under the auspices of Mr Harold Mills, the mediator assigned to these negotiations by the Federal Mediation and Con- ciliation Service Ballots will be returned to Mr Mills and he would provide both Local 639 and the Em- ployer Committee with the results of the membership ballotting no later than 4 p in, Monday, April 7, 1975 If the above proposal concerning retroactivity and a mail ballot is acceptable to the local union, our Nego- tiating Committee will cooperate in every way with the union representatives to insure that the mail ballot is accurately prepared and distributed to all employees covered by the collective-bargaining agreement no lat- er than Friday, March 28, 1975 Please notify us no later than tomorrow morning if this proposal is ac- ceptable On March 27 or 28, De Brouse telephoned Seward and rejected the mail ballot ratification procedure the MAWA had proposed in its March 27 letter De Brouse, as appears from his testimony, credited in this respect, told Seward that he had apparently misread the provisions of the International's constitution relating to voting procedures on contract proposals De Brouse explained that a simple majority was all that was required for acceptance or rejec- tion of a contract proposal, that the two-third rejection rule was applicable only when in the judgment of the Local's executive board the offer was a final one with strike action as the only apparent alternative to acceptance, and that in this instance even if the Union's executive board were to take action to authorize the two-third rejection rule, the vote would have to be taken at the union hall because of the commitment Warren had made Seward's only response was that the MAWA offer was a "final" one On March 31, 1975, Seward for the MAWA addressed a letter to De Brouse, which he read to Warren over the telephone that morning 7 Seward began his letter by refer- 7 The union office was closed that day Seward, however, was able to contact Warren at the home of out of-town relatives whom he was then visiting ring to a telephone conversation he had had with De Brouse and Warren on March 28, in which, he stated, they had "rejected the [MAWA] final offer for a 3-year collec- tive-bargaining agreement contained in the [MAWA] letter of March 27, 1975 " The letter then went on to declare As we advised you, the Association's membership can- not afford to operate after the March 31, 1975, expira- tion of the current collective-bargaining contract with- out the stability of a continuing labor agreement Therefore, unless you advise us to-day that you will submit the employers' final offer to the membership by way of the mail ballot procedure we proposed to you on March 27, 1975, with the provision that the employers offer would be retroactive from April 7, 1975, back to April 1, 1975, in order to allow the counting of ballots, the Association's membership will be forced to terminate operations by bargaining unit personnel on Tuesday, April 1, 1975 On April 1, 1975, the MAWA members suspended oper- ations, laying off all the bargaining unit employees The lockout continued until April 28, 1975 D Events Following the Lockout De Brouse testified that in telephone coversations with Seward on March 31, following receipt of the MAWA let- ter of that date, and again on April 1, he told Seward that the Union would regard lockout action by the MAWA members as an unfair labor practice De Brouse's testimo- ny, although not entirely clear in this respect, indicates that on April 1 he also informed Seward that the Union was in process of preparing unfair labor practice charges against Respondent 8 De Brouse's testimony to the foregoing ef- fect, although disputed by Seward, is credited On April 2, 1975, Seward, after conferring with MAWA counsel addressed a letter to De Brouse, which was pre- pared for his signature The letter strongly suggests that, as a result of a telephone conversation between Seward and De Brouse after the institution of the lockout, the Associa- tion had become concerned that its lockout action might be viewed as an unfair labor practice because of the choice given the Union in the Association's letter of March 31 of either agreeing to the specific ratification procedure the Association had proposed or suffering a lockout, and that the Association had now decided that it would be prudent to revise its previously declared position in that respect In his letter of April 2, addressed to De Brouse, Seward stated in part In response to your telephone call of yesterday, it is important to reiterate the reason why the employers found it necessary to terminate their operations on April 1, 1975 It appears that you feel that the employ- ers temporarily terminated their operations because Local 639 would not agree to a secret ballot, FMCS supervised, referendum as ratification procedure for the final employer offer It is the employers position 8 The charge in this case, which is signed by the Union's attorney, is dated April 1, 1975 It was not filed with the Regional Office, however, until April 3, and was served on April 4 MOVERS AND WAREHOUSEMEN'S ASSN OF WASHINGTON, D C that you are free to use whatever means you deem appropriate to ratify the employers' final offer This is a matter solely up to the Union in handling internal union affairs The letter then went on to state in substance that the Asso- ciation had initially, on March 27, suggested the FMCS supervised mail ballot procedure along with 1 week's retro- activity only as a counterproposal to the Union's demand for open-ended retroactivity, that in its March 31 letter the Association had renewed that counterproposal, although it had earlier been rejected as a "procedure" which would have allowed employers' operations to continue while the employees were given an opportunity to vote on the Association's "final" contract offer, and that when that counterproposal was again rejected, the employers had de- cided to "temporarily terminate operations until agreement could be reached on a renewal contract The temporary termination-the letter concluded-"continues only be- cause there is no labor contract We remain available to meet with representatives of the Local to resolve the mat- ter" When the Association's April 2 letter was sent, the Union had already scheduled a meeting to be held at the union hall on the afternoon of April 2 for employee consid- eration of the Association's contract offer At the union meeting held at that time, the employees voted to reject the offer Immediately following the union meeting on April 2, the MAWA negotiators met with the Union's negotiators at the latter's request The Union informed the Association of the employees' rejection of the Association's offer, stated that its demand was still for it 2-year contract with eco- nomic terms substantially the same as they had been on March 25, and proposed that the lockout be halted while negotiations continued The Association reiterated its final economic proposal of March 27, and declared that it would continue its lockout until the parties reached a contract Both sides remained adamant at that meeting in their pre- viously declared contract positions Thereafter, the parties had some five bargaining sessions under the auspices of a FMCS mediator-on April 4, 16, 21, 23, and 24 The General Counsel stipulated that both parties bargained in good faith during these meetings No progress was made at the meeting of April 4, but, begin- ning with the meeting of April 16, both the Association and the Union made substantial modifications in their re- spective positions, gradually narrowing the area of their differences A proposal made by the Association on April 21 was taken to employees for a referendum vote at the union hall, but was rejected Thereafter, after further modi- fications were made by each side in their bargaining posi- tions, a tentative agreement was reached on April 24 be- tween the union and Association negotiators which provided, inter alta, for a 3-year contract, with annual wage increases of 50 cents, 40 cents and 40 cents for drivers and 40 cents, 35 cents and 35 cents for helpers That agreement was ratified at a meeting at the union hall on Monday, April 28 On the same day the MAWA employers ended the lockout E Analysis and Concluding Findings 1 365 Although this case was litigated on a broader basis, the scope of the complaint is a narrow one As noted above, the complaint alleges in substance that Respondent violat- ed Section 8(a)(l), (3), and (5) of the Act by ( a) threatening to lock out the bargaining unit employees unless the Union agreed to submit Respondent's "final" contract offer to its employees for a ratification vote under the particular mail ballot procedure specified by Respondent, and no other, (b) locking out the employees on April 1, 1975, because the Union failed and refused so to agree, and (c) continuing the lockout in effect until April 28, 1975, for the same rea- son I am satisfied that under applicable principles of law the record supports violation findings with respect to the complaint's allegations identified immediately above as (a) and (b), but not as to (c)-and this for the reasons to be stated below 2 The threat referred to in the complaint is to be found in the Association's letter to the Union, dated March 31, 1975, wherein the Association informed the Union that un- less the Union agreed that day to submit Respondent's "fi- nal" contract offer to a referendum vote of its membership to be conducted under the particular procedure specified by Respondent-FMCS supervised mail balloting with a two-thirds negative vote required for rejection-the Re- spondent employers would terminate operations by bar- gaining unit personnel on April 1, 1975 The Union previ- ously, at the March 25 meeting, while agreeing to submit Respondent's "final" offer for a referendum vote by unit employees, had made clear its intent to conduct that vote at the Union hall where its president, De Brouse, could express his objections to the offer in a face-to-face meeting with the affected employees As the record reveals, the rati- fication procedure desired by the Union was displeasing to Respondent's negotiators They were of the belief that their offer would stand little chance of gaining employee ap- proval if that procedure were followed, particularly with De Brouse opposing Respondent's contract offer It is evident that Respondent's negotiators were de- termined, as part of their bargaining strategy, to impose on the Union if they could a ratification procedure more to their liking, one under which the vote would be conducted away from the union hall, with a minority vote of one-third plus one enough to obtain approval of Respondent's offer Thus, at the meeting of March 25, Respondent's represen- tatives pressed for a barn-by-barn ratification vote proce- dure, such as had been used in 1972, though they previous- ly had been made aware of the Union's commitment to its membership not to repeat that procedure in 1975 Also at that meeting, Respondent's negotiators sought to lay the foundation for a one-third-plus-one approval vote by label- ing their offer a "final" one 9 At the March 25 meeting, the 9 As Respondent's brief concedes, the Association's negotiators were then Continued 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union reiterated its firm intent to conduct all ratification votes that year at the union hall Nevertheless, on March 27, when Respondent submitted its counterproposal to the Union's demand for retroactivity, it conditioned the 1 week's retroactivity it offered upon the Union's adopting a mail balloting voting procedure on its contract offer, with a two-thirds vote required for rejection 1C The Union rejected the mail ballot ratification procedure proposed in the March 27 letter, once again reiterated its intention to con- duct the ratification vote at the union hall, and also made Respondent's negotiators aware of their misinterpretation of the provisions in the Teamsters constitution relating to ratification vote requirements Notwithstanding all this, Respondent persisted in its effort to obtain the form of ratification vote it wanted via its March 31 letter Respondent asserts in its brief that its only reason for referring in its March 31 letter to the mail ballot procedure was to show that its previously retroactivity counterpropo- sal (which had already been unequivocally rejected by the Union), was still being offered I find that explanation un- persuasive It appears to me to distort the plain sense of the letter That letter, as I read it, in effect presents the Union with this ultimatum Either agree to the specific ratification procedure we want (and if you do we will throw in 1 week's retroactivity as a sweetener) or suffer a lockout beginning tomorrow morning Similarly, I find unpersuasive Re- spondent's further assertion that it conditioned the with- holding of lockout action upon the Union agreeing to its proposal mail balloting procedure because it wanted to as- sure the holding of an early ratification vote that would limit the period of the retroactivity it was offering That assertion would have been more impressive, and indeed might have led me to reach a different conclusion on the issue in this case, had Respondent not restricted the meth- od of ratification procedure that the Union had to agree to if it was to avoid a lockout As found above, the Union had in fact earlier agreed to conduct a ratification vote on Respondent's contract proposal at the union hall, though indicating it could not arrange a meeting until April 1 or 2 Mail balloting, a slower procedure, could not have been completed with all ballots counted until April 7 at the earli- est Even if Respondent, as it says, had no definite commit- ment from the Union that a ratification vote would be held on April 1 or 2, this would not explain why Respondent could not have set a deadline for a ratification vote without also attempting to dictate the manner in which that vote was to be conducted The fact that Respondent was willing to withhold lockout action pending a ratification vote if the particular method of ratification it wanted was adopted, but not if the Union chose some other method, clearly dis- closes that Respondent's focus was not in the length of retroactivity, but on the method of ratification It is also noted that Respondent in its letter of March 31 under the mistaken belief that by so characterizing the offer the Union would be obliged under its constitution to adopt a ratification procedure that required a two-thirds vote for rejection 10Though a nonmandatory subject of bargaining the inclusion of that condition in the March 27 counterproposal was not unlawful in itself, for it was not made part of Respondents general contract offer and, unlike the repetition of that condition in the March 31 letter, it was not accompanied by a threat of lockout if not accepted expressly conditioned the withholding of lockout action, not on acceptance of Respondent's contract offer, but sole- ly upon acceptance of Respondent's proposed ratification procedure It is thus evident that, even if Respondent be- lieved that a lockout was desirable to support its bargain- ing position, it would have withheld such lockout action at least until a referendum vote on its contract offer was com- pleted, had the Union agreed to the particular ratification procedure Respondent was pressing for This is but anoth- er way of expressing the finding I make that Respondent locked out the unit employees on April 1 because the Union failed and refused to agree to submit Respondent's "final" contract offer for ratification by a FMCS mail bal- lot vote, as the complaint alleges What has been said above clearly refutes Respondent's primary contention in this case, that the "sole purpose" of the lockout action initiated by it on April 1 "was to bring economic pressure in support of [its] bargaining position, and to avoid a strike during [its] busy season " Re- spondent's ultimate objective, of course, was to obtain a contract satisfactory to it But its immediate object in pre- senting its ultimatum to the Union on March 31, and in implementing that ultimatum with the lockout action taken the following day, I am convinced and find, was to force the Union to yield to its position on the ratification proce- dure to be adopted on its then pending "final" contract offer It is well-settled law that where a lockout has a duality of objectives, one lawful, the other not, the presence of the lawful objective does not immunize the lockout from con- demnation under the Act 11 Left for consideration, then, is the question whether Respondent's effort through use of coercive measures to adopt the form of ratification proce- dure it wanted was unlawful under the Act For the reasons not to be stated, I find that it was Procedures relating to the ratification of contracts are internal union matters and are not mandatory subjects of bargaining Although an employer may request bargaining on such matters, it has been held to be a per se violation of Section 8(a)(5) and (1) of the Act for him to insist on push- ing his position to an impasse 12 In the Houchen's Market case, the court explained its holding to that effect as fol- lows The Company, by insisting that the contract be approved or ratified by a majority of the employees, was attempting to bargain not with respect to "wages, hours and other terms and conditions of employment" but with respect to a matter which was exclusively within the internal domain of the Union Members of a union have the right to determine the extent of au- thority delegated to their bargaining unit It is within their province to determine whether or not their bar- gaining unit may enter into a binding contract with or without membership ratification It is not an issue which the Company can insist upon without mutual See, e g Wire Products Manufacturing Co 198 NLRB 652 (1972) 12 See N L R B v Wooster Division of Borg Warner Corporation 356 U S 342 (1958), Houchens Market of Elizabethtown, Inc v N L R B, 375 F 2d 208, 212 (C A 6, 1967), Southwest Michigan Gas Company, 206 NLRB 60 (1973) Darlington Veneer Company 113 NLRB 1101 (1955) enfd 236 F 2d 85 (C A 5 1956) MOVERS AND WAREHOUSEMEN'S ASSN OF WASHINGTON, D C agreement by the Union, any more than the Union can insist that the contract be submitted to the Board of Directors or stockholders of the Company And in the Borg-Warner case, supra, where the Supreme Court upheld the Board's finding that it was a violation of Section 8(a)(1) and (5) of the Act for an employer to condi- tion the acceptance of a collective-bargaining agreement on the inclusion of a strike "ballot" clause, the Supreme Court as one of the reasons for its holding, stated at 350 [The ballot clause] substantially modifies the collective bargaining system provided for in the statute by weak- ening the independence of the representative chosen by the employees Respondent contends that the cited cases are inapposite here because in each of them the employer was insisting on its proposed ratification provision as a condition precedent to the consummation of any agreement, whereas it is not true in the case at hand Plainly, if it is unlawful for an employer to insist to an impasse on a particular method of ratification, it is also unlawful for him to utilize the far more drastic economic pressure of a lockout in an effort to achieve the same objective Here, no less than in the cited cases, Respondent's conduct involved an unwarranted and coercive intrusion into the Union's internal affairs that was at war with its bargaining obligation to accord the Union the full measure of recognition that is its statutory due In that sense, I find Respondent's conduct amounted to a re- fusal to bargain with the Union in good faith in violation of Section 8(a)(5) of the Act In any event, more is involved here than simply the ques- tion of whether Respondent's complained of conduct amounted to a lack of good-faith bargaining within the meaning of Section 8(a)(5) Also involved is the question whether, apart from a refusal to bargain, Respondent's conduct constituted an independent violation of Section 8(a)(1) I find that it did There can be little doubt that, in furtherance of their Section 7 right to engage in self-organi- zation and to bargain collectively through their own repre- sentatives, employees may delegate to their duly designated bargaining agent authority to act on their behalf to regu- late internal union affairs, including whether, when, or how employer contracts are to be submitted for ratification In taking the position it did on the subject of ratification, the Union was thus exercising on behalf of the represented employees a statutorily protected employee right It follows that Respondent's coercive conduct aimed at pressuring the Union to alter its position on that subject trenched on employee rights in violation of Section 8(a)(1) I so find I further find that Respondent's action in laying off (locking out) the employees was also violative of Section 8(a)(3) since it constituted union-related discrimination in employ- ment of a kind that inherently discourages union member- ship 13 13 It is noted, however, that the remedial Order recommended below would be the same whether such conduct is found violative of Sec 8(a)(1) or 8(a)(3) or both 3 367 Having found that the lockout was unlawfully instituted by Respondent on April 1, 1975, I turn now to consider the issue raised by Respondent's alternative defense that the 4-week lockout that began on April 1, 1975, even if unlaw- ful at its inception, ceased to be so on April 2, 1975 For the reasons stated below, I find merit in that defense It has been found above that, but for the Union's refusal to agree to the mail ballot balloting ratification procedure Respondent had proposed, Respondent would have with- held lockout action at least until its then pending contract offer was submitted to an employee referendum vote Respondent's unlawful objective to force the Union to yield to the particular ratification procedure Respondent had proposed failed of its purpose on April 2, 1975, when the Union conducted a referendum vote at the union hall and the contract offer was voted down On the same day, Respondent retracted the unlawful condition for lockout avoidance stated in its letter of March 31, and made it clear to the Union that it was continuing its lockout only to bolster its position on its contract offer In Local 374, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL- CIO [American Ship Building Co ] v N L R B, 380 U S 300 (1965), the Supreme Court ruled that an employer does not violate the Act when he locks out his employees "for the sole purpose of bringing economic pressure to bear in support of his legitimate bargaining position " It is true, as the Union emphasizes, that the Supreme Court expressly limited its holding in that case to lockouts occurring after a bargaining impasse was reached But I find no need to determine the issue litigated in this case as to whether there was a bargaining impasse at the time of the lockout Subse- quent Board decisions have extended the rationale of American Ship Building to preimpasse lockouts 14 Under the Board's current view, as I understand it, bargaining lockouts are presumptively privileged even when they oc- cur prior to a bargaining impasse That presumption may be overcome only if it is shown by all the surrounding circumstances that the lockout was motivated, wholly or in significant part, by a purpose to evade the duty to bargain, to discourage union activity, or to achieve some other ob- jective that is inherently destructive of employee rights The absence of an impasse may in certain situations be a relevant fact to be weighed in the balance in determining whether the totality of circumstances are such as to support an inference that the lockout was unlawfully motivated But it is not alone enough to establish a per se violation Nor does the Board now require, as it did prior to Ameri- can Ship Building, that an employer, to justify a bargaining lockout, must demonstrate the existence of operational or other special economic circumstances sufficient in kind and degree to support a finding that the lockout was war- ranted as a necessary defensive measure to counter threat- ened strike action 15 14 See e g The Evening News Association Owner and Publisher of "The Detroit News"; 166 NLRB 219 (1967), Darling and Company, 171 NLRB 801 (1968) affil sub nom Lewis Lane v NLRB 418 F 2d 1208 (CAD C 1969) Stokely Van Camp, Inc, 186 NLRB 440, 450-451 (1970) 15 Cf Duluth Bottling Association 48 NLRB 1335, 1359-60 (11943) Betts Cadillac Olds Inc, 96 NLRB 268 (1951) 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no evidence in this case that Respondent's con- tinuation of its lockout after April 2 was motivated in whole or in part by any unlawful consideration or was otherwise in the service of any design inimical to the pro- cess of collective bargaining Indeed, the General Counsel stipulated at the hearing that Respondent at all times after April 2 bargained with the Union in good faith Nor can it be said in this case that Respondent's continuation of the lockout after April 2 was entirely devoid of economic Justi- fication Respondent's interest in forcing an early resolu- tion of its contract dispute with the Union in order to avoid crisis bargaining during its approaching busy season can- not be regarded as either improper or insignificant More- over, the Union had given Respondent reason to believe that it would not enter into a contract settlement without retroactivity and would strike if necessary to obtain it As the Respondent employers were engaged in a service indus- try where quoted prices had to be certain, and as such prices were based in large measure on labor costs, Respon- dent also had a significant economic interest in suspending operations during a period when its labor costs would be uncertain The General Counsel and the Union argue broadly that where, as here, a lockout unlawful at its inception is contin- ued without physical hiatus, it must, as a matter of law, be deemed to retain its initial taint of illegality for its dura- tion, and this though the condition which initially made it unlawful has been eliminated Neither the General Counsel nor the Union have cited any apposite authority to support their contention in this respect 'PAS applied to a situation such as is present here, I am convinced that their conten- tion has no validity Had Respondent in this case terminat- ed its lockout on April 2, and then had, say on April 3, reinstated it, for the sole purpose of supporting its legiti- mate bargaining position, there could not possibly be any question as to the legitimacy of the lockout begun on April 3 Indeed, the argument made by the General Counsel and the Union appears inferentially to concede as much Here, Respondent did not go through these motions, but the events of April 2, as found above, were nevertheless such as to make it crystal clear that Respondent was no longer utilizing the lockout for the objective that had made it un- lawful when it began To reach a different result in these circumstances simply because the lockout was continued without a break, would be only to exalt form over sub- stance The General Counsel and the Union also make the fur- ther and somewhat related argument that Respondent should in any event be required, as a matter of remedy, to "The General Counsel's brief cites no cases at all The Union s brief relies principally on Board cases involving strikes in violation of the notice requirements of Sec 8(d) or picketing in violation of Sec 8(b)(7)(B) (See e g, Retail Clerks International Association Local No 1179 (California Asso ciation of Employees for and on behalf of J C Penney Company), 109 NLRB 754 (1954), Lawrence Typographical Union No 570 (Kansas Color Press), 158 NLRB 1332 (1966) ) Contrary to the assertion of the Union, the cited cases are not analogous since they are concerned with situations as to which clearly expressed statutory policies are applicable Moreover, it clearly ap- pears that the strike or picketing conduct found unlawful in the cited cases was unlawful under the applicable statutory provision not only at the incep- tion of such activity, but throughout its course make the affected employees whole for their loss of earn- ings during the entire period the lockout continued in force Although not too clearly articulated in their briefs, their theory appears to be that Respondent, having unlaw- fully laid off (locked out) employees on April 1, became obligated to remedy that violation by terminating the lock- out and reinstating the unlawfully laid off employees to their jobs, and that since Respondent failed to do so April 28, when it terminated the lockout, it should now be as- sessed with backpay liability up to the actual date of their reinstatement The flaw in that argument is that it is based on an assumption that work would have been available for the employees between April 2 and 28 The fact is, howev- er, that no work was available during that period because, as found above, Respondent's operations were then legiti- mately suspended In short, the employees loss of earnings between April 2 and 28 was not linked to Respondent's failure to remedy the unfair labor practices herein found Accordingly, I conclude that Respondent's lockout of the unit employees, although violative of Section 8(a)(1), (3), and (5) at its inception, ceased to be so on April 2, 1975 CONCLUSIONS OF LAW 1 All employees in the categories listed in footnote 1, above, other than excluded categories, who are employed by Employers that are members of, and are represented for purposes of bargaining with the Union by, the Association constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9(b) of the Act 2 The Union at all times material to this proceeding has been, and now is, the exclusive representative of all em- ployees in the aforesaid unit for the purposes of collective bargaining, within the meaning of Section 9(a) of the Act 3 By threatening to lock out the employees in the ap- propriate unit if the Union did not agree to submit Respondent's contract offer for ratification by employees in the particular manner Respondent had specified, Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act 4 By locking out the employees in the appropriate unit on April 1, 1975, and continuing said lockout until April 2, 1975, because the Union failed and refused to submit Respondent's final contract offer for ratification by the unit employees in the manner that Respondent had speci- fied, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act 5 The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act 6 Respondent did not engage in unfair labor practices within the meaning of the Act by continuing to lock out the unit employees after April 2, 1975 THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that Respondent be ordered to cease and desist from them, and from like MOVERS AND WAREHOUSEMEN'S ASSN OF WASHINGTON, D C and related unfair labor practices, and that it take the affir- mative action provided for in the recommended Order be- low, which I find necessary to effectuate the policies of the Act Having found that Respondent unlawfully locked out the bargaining unit employees on April 1, 1975, and con- tinued that lockout for an unlawful objective until April 2, 1975, it will be recommended that Respondent be ordered to make such employees whole for any loss of pay they may have suffered by reason of such unlawful conduct, by payment to each of them of a sum of money equal to that which he would have normally earned as wages on April 1 and 2, 1975, less his net earning on such dates, such sums to be computed in the manner set forth in F W Wool- worth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co, 138 NLRB 716 (1962) Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended ORDER i"7 Respondent, Movers and Warehousemen's Association of Metropolitan Washington, D C, Inc and its Employer Members of said Association, jointly and severally, name- ly, Bekins Moving & Storage Co, Colonial Storage Co, District Moving & Storage Inc , Fidelity Storage Co , Lions Transfer Co, Merchants Storage Co of Va, Columbia Van Lines Corp, Security Storage Co of Washington, Smith's Moving & Storage Co, Inc, and United States Moving & Storage Co , Inc, their respective officers, agents, successors, and assigns, shall, jointly and severally I Cease and desist from (a) Threatening employees in the appropriate bargain- ing unit with lockouts or layoffs, where an object thereof is to force their bargaining representative to agree to methods or procedures proposed by Respondent for the ratification of contract offers (b) Discouraging membership in Local Union No 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, by discriminato- rily locking out or laying off any of its employees, or dis- 17 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 369 criminating in any other manner in regard to their hire and tenure of employment, or any term or condition of employ- ment (c) Refusing to bargain collectively in good faith with the aforementioned Union, as the exclusive bargaining rep- resentative of all employees in the appropriate unit stated in paragraph 1 of the Conclusions of Law, above, by en- gaging in, or threatening to engage in, lockouts, layoffs, or other retaliatory measures adversely affecting the earnings of the bargaining unit employees, where an object thereof is to force the Union to adopt methods or procedures pro- posed by Respondent for the ratification of contract offers (d) In any like or related manner, interfering with, re- straining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act 2 Take the following affirmative action which it is found will effectuate the policies of the Act (a) Make whole all employees in the appropriate bar- gaining unit stated in paragraph 1 of the Conclusions of Law for any loss of pay they may have suffered on April 1 and 2, 1975, by reason of Respondent's unfair labor prac- tice herein found, in the manner set forth in the section above entitled, "The Remedy " (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the backpay due under the terms of this Order (c) Post at each facility of the Employer Members of the Association at which employees in the appropriate bar- gaining unit are employed, or out of which they work, cop- ies of the attached notice marked "Appendix " 18 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by Respondent's representa- tive, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material (d) Notify the Regional Director for Region 5, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith 18 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board' shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board