259 NLRB 643
Kaiser Steel Corporation
KAISER STEEL CORPORATION
643
Kaiser Steel Corporation and International Associ-
activities on behalf of, labor organizations, and
ation of Machinists and Aerospace Workers,
thereby has engaged in unfair labor practices
AFL-CIO,
District Lodge No.
190,
Local
within the meaning of Section 8(a)(1) and (3) of the
Lodge No. 1492. Case 20-CA-15515
Act."
December 11, 1981
ORDER
DECISION AND ORDER
Pursuant to Section 10(c) of the National Labor
BY CHAIRMAN VAN DE WATER AND
Relations Act, as amended, the National Labor Re-
MEMBERS JENKINS AND HUNTER
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
On July 30, 1981, Administrative Law Judge
hereby orders that the Respondent, Kaiser Steel
Timothy D. Nelson issued the attached Decision in
Corporation, Napa, California, its officers, agents,
this proceeding. Thereafter, Respondent filed ex-
successors, and assigns, shall take the action set
ceptions and a supporting brief.
forth in said recommended Order.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
DECISION
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
TIMOTHY D. NELSON, Administrative Law Judge: In-
tached Decision in light of the exceptions and brief
ternational Association of Machinists and Aerospace
and has decided to affirm the rulings,' findings, 2
Workers, AFL-CIO, District Lodge No. 190, Local
and conclusions of the Administrative Law Judge
Lodge No. 1492 (herein called Machinists), filed an origi-
and to adopt his recommended Order.
nal and amended unfair labor practice charge on July 22
and August 26, 1980,' respectively, against Kaiser Steel
AMENDED CONCLUSION OF LAW
Corporation (herein called Kaiser). After an investiga-
tion, the Regional Director for Region 20 of the Nation-
In accordance with our finding in the second
al Labor Relations Board issued a complaint and notice
paragraph of footnote 2, supra we hereby amend
of hearing against Kaiser on August 27.
the Administrative Law Judge's Conclusion of
I heard the matter at Vallejo, California, on February
Law 4 to read as follows:
10, 1981.
"4. By refusing to permit such striking employ-
The General Counsel and Kaiser each filed timely
ees to remove their personally owned tools from its
post-trial briefs which I have carefully considered.
Napa plant in order to impair their ability to obtain
other employment during the strike and under cir-Question
Presented
cumstances where, absent a strike, Respondent nor-
Did Kaiser violate Section 8(a)3) and (1) of the Na-
mally permits its employees to remove their tools
tional Labor Relations Act, as amended, by its admitted
for their own purposes, Respondent has interfered
actions in prohibiting employees engaged in a protected
with, restrained, and coerced employees in the ex-
strike from removing their personally owned tools from
ercise of rights protected by Sections 7 and 13 of
its struck plant premises, where its admitted primary mo-
the Act, and has discriminated against employees
tivation was to "pressure" strikers to abandon the strike
with respect
to their terms and conditions of em-
by making it impossible for them to use their tools to
with respect to their terms and conditions of em-
g
p0
obtain interim employment elsewhere, and under circum-
ployment in order to discourage membership in, or
stances where Kaiser otherwise permits employees to
remove their tools from the plant for their own use?
i In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
FINDINGS OF FACT
due based on the formula set forth therein.
I In finding that Respondent violated Sec. 8(aX3) and (1) of the Act by
There are no material disputed questions of fact. The
enforcing its policy of refusing to permit its striking employees to remove
their personally owned tools from Respondent's Napa, California, facility,
findings below derive from the uncontradicted and cred-
we do not rely on the Administrative Law Judge's comment at par. 7 of
ited testimony of the witnesses and the parties' stipula-
the section entitled "Analysis and Conclusions" that Fraley d Schilling.
tions.
Inc., 211 NLRB 422 (1974), is dispositive of the cae herein. We regard
There were four witnesses. Kaiser's personnel man-
that case as distinguishable and rely instead on the remainder of his anal-
ys.
ager, Michael Brundy, testified, inter alia, that Kaiser has
We also note that, at par. 6 of the section entitled "Analysis and Con-
"a policy during strikes not to allow tools to be removed
clusions," the Administrative Law Judge inartfully characterized Re-
basically to pressure employees into accepting [Kaiser's
spondents policy with respect to the removal of personally owned tools
a
t
a
g
b
during the course of a strike. The record more accurately reflects that
rop
agreement terms and going back to
ork
absent a strike, Respondent normally permits its employees to remove
their tools for personal use.
All dates are in 1980 unless otherwise specified.
Chairman Van de Water and Member Hunter find it unnecessary to
' Brundy also testified that another reason for preventing removal of
rely on Gary-Hobart Water Corporation, 210 NLRB 742 (1974), inasmuch
tools, although of lesser significance to Kaiser, is the desire to minimize
as there is no "no-strike" clause at issue herein.
Continued
259 NLRB No. 85
KAISER STEEL CORPORATION
643
Kaiser Steel Corporation and International Associ-
activities on behalf of, labor organizations, and
ation of Machinists and Aerospace Workers,
thereby has engaged
in unfair labor practices
AFL-CIO,
District Lodge
No.
190,
Local
within the meaning of Section 8(a)(l) and (3) of the
Lodge No. 1492. Case 20-CA-15515
Act."
December 11, 1981
ORDER
DECISION AND ORDER
Pursuant to Section 10(c) of the National Labor
BY CHAIRMAN VAN DE WATER AND
Relations Act, as amended, the National Labor Re-
MEMBERS JENKINS AND HUNTER
lation s Board adopts as its Order the recommended
Order of the Administrative Law Judge and
On July 30, 1981, Administrative Law Judge
hereby orders that the Respondent, Kaiser Steel
Timothy D. Nelson issued the attached Decision in
Corporation, Napa, California, its officers, agents,
this proceeding. Thereafter, Respondent filed ex-
successors, and assigns, shall take the action set
ceptions and a supporting brief,.forth
in said recommended Order.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
DECISION
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
TIMOTHY D. NELSON, Administrative Law Judge: In-
tached Decision in light of the exceptions and brief
ternational Association of Machinists and Aerospace
and has decided to affirm the rulings,' findings, 2
Workers, AFL-CIO, District Lodge No. 190, Local
and conclusions of the Administrative Law Judge
Lodge No. 1492 (herein called Machinists), filed an origi-
and to adopt his recommended Order.
n al an d amended unfair labor practice charge on July 22
and August 26, 1980,' respectively, against Kaiser Steel
AMENDED CONCLUSION OF LAW
Corporation (herein called Kaiser). After an investiga-
tion, the Regional Director for Region 20 of the Nation-
In accordance with our finding in the second
al Labor Relations Board issued a complaint and notice
paragraph of footnote 2, supra we hereby amend
of hearing against Kaiser on August 27.
the Administrative Law Judge's Conclusion of
I heard the matter at Vallejo, California, on February
Law 4 to read as follows:
10, 1981.
"4. By refusing to permit such striking employ-
The General Counsel and Kaiser each filed timely
ees to remove their personally owned tools from its
post-trial briefs which I have carefully considered.
Napa plant in order to impair their ability to obtain
other employment during the strike and under cir-Question
Presented
cumstances where, absent a strike, Respondent nor-
Did Kaiser violate Section 8(aX3) and (1) of the Na-
mally permits its employees to remove their tools
tional Labor Relations Act, as amended, by its admitted
for their own purposes, Respondent has interfered
actions in prohibiting employees engaged in a protected
with, restrained, and coerced employees in the ex-
s t ri ke
fro m removing their personally owned tools from
ercise of rights protected by Sections 7 and 13 of
i t s s t ru c k plant premises, w h er e i t s admitted primary mo-
the Act, and has discriminated against employees
tivation was to "pressure" strikers to abandon the strike
with respect to their terms and conditions of em-
by making it impossible for them to use their tools to
obtain interim employment elsewhere, and under circum-
ployment in order to discourage membership in, or
stances where Kaiser otherwise permits employees to
-* -----
~~~~~~~~~~~~remove
their tools from the plant for their own use?
I In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980) Member Jenkrins would awar
d i n t
er es
t on
th
c
FNDINOS OF FACT
due based on the formula set forth therein.
FNIG
FFC
I In finding that Respondent violated See. 8(aX3) and (1) of the Act by
hr
e
mtia
spe
qsio
f
c.
e
enforcing its policy of refusing to permit its striking employees to remove
Thre are no material disputed questions of fact. Ile
their personally owned tools from Respondent's Napa, California, facility,
findings below derive from the uncontradicted and cred-
we do not rely on the Administrative Law Judge's comment at par. 7 of
ited testimony of the witnesses and the parties' stipula-
the section entitled "Analysis and Conclusions" that Fraley d Schilling,
tions.
Inc., 211
^
2
There were four witnesses. Kaiser's personnel man-
that caw as distinguishable and rely instead on the remainder of his anal-
Teewr
orwtess
asrspronlmn
yui.&ager,
Michael Brundy, testified, inter alia. that Kaiser has
We also note that, at par. 6 of the section entitled "Analysis and Con-
"a policy during Strikes not to allow tools to be removed
clusions," the Administrative Law Judge inartlully characterized Re-
basically to pressure employees into accepting [Kaiser's
spondents policy with respect to the removal of personally owned tools
1 2
»
^
*
1^1
, ,,
during the course of a strike. The record more accurately reflects that,
propossd] agreement
terms and going back to Work,
absent a strike. Respondent normally permits its employees to remove
their tools for personal use.
IAll dales are in 1980 unless otherwise specified.
Chairman Van de Water and Member Hunter find it unnecessary to
IBrundy also testified that another reason for preventing removal of
rely on Gary-Hobart Water Corporation, 210 NLRB 742 (1974), inasmuch
tools, although of lesser significance to Kaiser, is the desire to minimize
as there is no "no-strike" clause at issue herein.
Continued
259 NLRB No. 85
KAISER STEEL CORPORATION
643
Kaiser Steel Corporation and International Associ-
activities on behalf of, labor organizations, and
ation of Machinists and Aerospace Workers,
thereby has engaged
in unfair labor practices
AFL-CIO,
District Lodge
No.
190,
Local
within the meaning of Section 8(a)(l) and (3) of the
Lodge No. 1492. Case 20-CA-15515
Act."
December 11, 1981
ORDER
DECISION AND ORDER
Pursuant to Section 10(c) of the National Labor
BY CHAIRMAN VAN DE WATER AND
Relations Act, as amended, the National Labor Re-
MEMBERS JENKINS AND HUNTER
lation s Board adopts as its Order the recommended
Order of the Administrative Law Judge and
On July 30, 1981, Administrative Law Judge
hereby orders that the Respondent, Kaiser Steel
Timothy D. Nelson issued the attached Decision in
Corporation, Napa, California, its officers, agents,
this proceeding. Thereafter, Respondent filed ex-
successors, and assigns, shall take the action set
ceptions and a supporting brief,.forth
in said recommended Order.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
DECISION
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
TIMOTHY D. NELSON, Administrative Law Judge: In-
tached Decision in light of the exceptions and brief
ternational Association of Machinists and Aerospace
and has decided to affirm the rulings,' findings, 2
Workers, AFL-CIO, District Lodge No. 190, Local
and conclusions of the Administrative Law Judge
Lodge No. 1492 (herein called Machinists), filed an origi-
and to adopt his recommended Order.
n al an d amended unfair labor practice charge on July 22
and August 26, 1980,' respectively, against Kaiser Steel
AMENDED CONCLUSION OF LAW
Corporation (herein called Kaiser). After an investiga-
tion, the Regional Director for Region 20 of the Nation-
In accordance with our finding in the second
al Labor Relations Board issued a complaint and notice
paragraph of footnote 2, supra we hereby amend
of hearing against Kaiser on August 27.
the Administrative Law Judge's Conclusion of
I heard the matter at Vallejo, California, on February
Law 4 to read as follows:
10, 1981.
"4. By refusing to permit such striking employ-
The General Counsel and Kaiser each filed timely
ees to remove their personally owned tools from its
post-trial briefs which I have carefully considered.
Napa plant in order to impair their ability to obtain
other employment during the strike and under cir-Question
Presented
cumstances where, absent a strike, Respondent nor-
Did Kaiser violate Section 8(aX3) and (1) of the Na-
mally permits its employees to remove their tools
tional Labor Relations Act, as amended, by its admitted
for their own purposes, Respondent has interfered
actions in prohibiting employees engaged in a protected
with, restrained, and coerced employees in the ex-
s t ri ke
fro m removing their personally owned tools from
ercise of rights protected by Sections 7 and 13 of
i t s s t ru c k plant premises, w h er e i t s admitted primary mo-
the Act, and has discriminated against employees
tivation was to "pressure" strikers to abandon the strike
with respect to their terms and conditions of em-
by making it impossible for them to use their tools to
obtain interim employment elsewhere, and under circum-
ployment in order to discourage membership in, or
stances where Kaiser otherwise permits employees to
-* -----
~~~~~~~~~~~~remove
their tools from the plant for their own use?
I In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980) Member Jenkrins would awar
d i n t
er es
t on
th
c
FNDINOS OF FACT
due based on the formula set forth therein.
FNIG
FFC
I In finding that Respondent violated See. 8(aX3) and (1) of the Act by
hr
e
mtia
spe
qsio
f
c.
e
enforcing its policy of refusing to permit its striking employees to remove
Thre are no material disputed questions of fact. Ile
their personally owned tools from Respondent's Napa, California, facility,
findings below derive from the uncontradicted and cred-
we do not rely on the Administrative Law Judge's comment at par. 7 of
ited testimony of the witnesses and the parties' stipula-
the section entitled "Analysis and Conclusions" that Fraley d Schilling,
tions.
Inc., 211
^
^
2
There were four witnesses. Kaiser's personnel man-
that caw as distinguishable and rely instead on the remainder of his anal-
Teewr
orwtess
asrspronlmn
yui.&ager,
Michael Brundy, testified, inter alia. that Kaiser has
We also note that, at par. 6 of the section entitled "Analysis and Con-
"a policy during Strikes not to allow tools to be removed
clusions," the Administrative Law Judge inartfully characterized Re-
basically to pressure employees into accepting [Kaiser's
spondents policy with respect to the removal of personally owned tools
1 2
»
^
*
1^1
, ,,
during the course of a strike. The record more accurately reflects that,
propossd] agreement
terms and going back to Work,
absent a strike. Respondent normally permits its employees to remove
their tools for personal use.
IAll dales are in 1980 unless otherwise specified.
Chairman Van de Water and Member Hunter find it unnecessary to
IBrundy also testified that another reason for preventing removal of
rely on Gary-Hobart Water Corporation, 210 NLRB 742 (1974), inasmuch
tools, although of lesser significance to Kaiser, is the desire to minimize
as there is no "no-strike" clause at issue herein.
Continued
259 NLRB No. 85
KAISER STEEL CORPORATION
643
Kaiser Steel Corporation and International Associ-
activities on behalf of, labor organizations, and
ation of Machinists and Aerospace Workers,
thereby has engaged
in unfair labor practices
AFL-CIO,
District Lodge
No.
190,
Local
within the meaning of Section 8(a)(l) and (3) of the
Lodge No. 1492. Case 20-CA-15515
Act."
December 11, 1981
ORDER
DECISION AND ORDER
Pursuant to Section 10(c) of the National Labor
BY CHAIRMAN VAN DE WATER AND
Relations Act, as amended, the National Labor Re-
MEMBERS JENKINS AND HUNTER
lation s Board adopts as its Order the recommended
Order of the Administrative Law Judge and
On July 30, 1981, Administrative Law Judge
hereby orders that the Respondent, Kaiser Steel
Timothy D. Nelson issued the attached Decision in
Corporation, Napa, California, its officers, agents,
this proceeding. Thereafter, Respondent filed ex-
successors, and assigns, shall take the action set
ceptions and a supporting brief,.forth
in said recommended Order.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
DECISION
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
TIMOTHY D. NELSON, Administrative Law Judge: In-
tached Decision in light of the exceptions and brief
ternational Association of Machinists and Aerospace
and has decided to affirm the rulings,' findings, 2
Workers, AFL-CIO, District Lodge No. 190, Local
and conclusions of the Administrative Law Judge
Lodge No. 1492 (herein called Machinists), filed an origi-
and to adopt his recommended Order.
n al an d amended unfair labor practice charge on July 22
and August 26, 1980,' respectively, against Kaiser Steel
AMENDED CONCLUSION OF LAW
Corporation (herein called Kaiser). After an investiga-
tion, the Regional Director for Region 20 of the Nation-
In accordance with our finding in the second
al Labor Relations Board issued a complaint and notice
paragraph of footnote 2, supra we hereby amend
of hearing against Kaiser on August 27.
the Administrative Law Judge's Conclusion of
I heard the matter at Vallejo, California, on February
Law 4 to read as follows:
10, 1981.
"4. By refusing to permit such striking employ-
The General Counsel and Kaiser each filed timely
ees to remove their personally owned tools from its
post-trial briefs which I have carefully considered.
Napa plant in order to impair their ability to obtain
other employment during the strike and under cir-Question
Presented
cumstances where, absent a strike, Respondent nor-
Did Kaiser violate Section 8(aX3) and (1) of the Na-
mally permits its employees to remove their tools
tional Labor Relations Act, as amended, by its admitted
for their own purposes, Respondent has interfered
actions in prohibiting employees engaged in a protected
with, restrained, and coerced employees in the ex-
s t ri ke
fro m removing their personally owned tools from
ercise of rights protected by Sections 7 and 13 of
i t s s t ru c k plant premises, w h er e i t s admitted primary mo-
the Act, and has discriminated against employees
tivation was to "pressure" strikers to abandon the strike
with respect to their terms and conditions of em-
by making it impossible for them to use their tools to
obtain interim employment elsewhere, and under circum-
ployment in order to discourage membership in, or
stances where Kaiser otherwise permits employees to
-* -----
~~~~~~~~~~~~remove
their tools from the plant for their own use?
I In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980) Member Jenkrins would awar
d i n t
er es
t on
th
c
FNDINOS OF FACT
due based on the formula set forth therein.
FNIG
FFC
I In finding that Respondent violated See. 8(aX3) and (1) of the Act by
hr
e
mtia
spe
qsio
f
c.
e
enforcing its policy of refusing to permit its striking employees to remove
Thre are no material disputed questions of fact. Ile
their personally owned tools from Respondent's Napa, California, facility,
findings below derive from the uncontradicted and cred-
we do not rely on the Administrative Law Judge's comment at par. 7 of
ited testimony of the witnesses and the parties' stipula-
the section entitled "Analysis and Conclusions" that Fraley d Schilling,
tions.
Inc., 211
^
^
2
There were four witnesses. Kaiser's personnel man-
that caw as distinguishable and rely instead on the remainder of his anal-
Teewr
orwtess
asrspronlmn
yui.&ager,
Michael Brundy, testified, inter alia. that Kaiser has
We also note that, at par. 6 of the section entitled "Analysis and Con-
"a policy during Strikes not to allow tools to be removed
clusions," the Administrative Law Judge inartfully characterized Re-
basically to pressure employees into accepting [Kaiser's
spondents policy with respect to the removal of personally owned tools
1 2
»
^
*
1^1
, ,,
during the course of a strike. The record more accurately reflects that,
propossd] agreement
terms and going back to Work,
absent a strike. Respondent normally permits its employees to remove
their tools for personal use.
IAll dales are in 1980 unless otherwise specified.
Chairman Van de Water and Member Hunter find it unnecessary to
IBrundy also testified that another reason for preventing removal of
rely on Gary-Hobart Water Corporation, 210 NLRB 742 (1974), inasmuch
tools, although of lesser significance to Kaiser, is the desire to minimize
as there is no "no-strike" clause at issue herein.
Continued
259 NLRB No. 85
KAISER STEEL CORPORATION
643
Kaiser Steel Corporation and International Associ-
activities on behalf of, labor organizations, and
ation of Machinists and Aerospace Workers,
thereby has engaged
in unfair labor practices
AFL-CIO,
District Lodge
No.
190,
Local
within the meaning of Section 8(a)(l) and (3) of the
Lodge No. 1492. Case 20-CA-15515
Act."
December 11, 1981
ORDER
DECISION AND ORDER
Pursuant to Section 10(c) of the National Labor
BY CHAIRMAN VAN DE WATER AND
Relations Act, as amended, the National Labor Re-
MEMBERS JENKINS AND HUNTER
lation s Board adopts as its Order the recommended
Order of the Administrative Law Judge and
On July 30, 1981, Administrative Law Judge
hereby orders that the Respondent, Kaiser Steel
Timothy D. Nelson issued the attached Decision in
Corporation, Napa, California, its officers, agents,
this proceeding. Thereafter, Respondent filed ex-
successors, and assigns, shall take the action set
ceptions and a supporting brief,.forth
in said recommended Order.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
DECISION
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
TIMOTHY D. NELSON, Administrative Law Judge: In-
tached Decision in light of the exceptions and brief
ternational Association of Machinists and Aerospace
and has decided to affirm the rulings,' findings, 2
Workers, AFL-CIO, District Lodge No. 190, Local
and conclusions of the Administrative Law Judge
Lodge No. 1492 (herein called Machinists), filed an origi-
and to adopt his recommended Order.
n al an d amended unfair labor practice charge on July 22
and August 26, 1980,' respectively, against Kaiser Steel
AMENDED CONCLUSION OF LAW
Corporation (herein called Kaiser). After an investiga-
tion, the Regional Director for Region 20 of the Nation-
In accordance with our finding in the second
al Labor Relations Board issued a complaint and notice
paragraph of footnote 2, supra we hereby amend
of hearing against Kaiser on August 27.
the Administrative Law Judge's Conclusion of
I heard the matter at Vallejo, California, on February
Law 4 to read as follows:
10, 1981.
"4. By refusing to permit such striking employ-
The General Counsel and Kaiser each filed timely
ees to remove their personally owned tools from its
post-trial briefs which I have carefully considered.
Napa plant in order to impair their ability to obtain
other employment during the strike and under cir-Question
Presented
cumstances where, absent a strike, Respondent nor-
Did Kaiser violate Section 8(aX3) and (1) of the Na-
mally permits its employees to remove their tools
tional Labor Relations Act, as amended, by its admitted
for their own purposes, Respondent has interfered
actions in prohibiting employees engaged in a protected
with, restrained, and coerced employees in the ex-
s t ri ke
fro m removing their personally owned tools from
ercise of rights protected by Sections 7 and 13 of
i t s s t ru c k plant premises, w h er e i t s admitted primary mo-
the Act, and has discriminated against employees
tivation was to "pressure" strikers to abandon the strike
with respect to their terms and conditions of em-
by making it impossible for them to use their tools to
obtain interim employment elsewhere, and under circum-
ployment in order to discourage membership in, or
stances where Kaiser otherwise permits employees to
-* -----
~~~~~~~~~~~~remove
their tools from the plant for their own use?
I In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980) Member Jenkrins would awar
d i n t
er es
t on
th
c
FNDINOS OF FACT
due based on the formula set forth therein.
FNIG
FFC
I In finding that Respondent violated See. 8(aX3) and (1) of the Act by
hr
e
mtia
spe
qsio
f
c.
e
enforcing its policy of refusing to permit its striking employees to remove
Thre are no material disputed questions of fact. Ile
their personally owned tools from Respondent's Napa, California, facility,
findings below derive from the uncontradicted and cred-
we do not rely on the Administrative Law Judge's comment at par. 7 of
ited testimony of the witnesses and the parties' stipula-
the section entitled "Analysis and Conclusions" that Fraley d Schilling,
tions.
Inc., 211
^
^
2
There were four witnesses. Kaiser's personnel man-
that caw as distinguishable and rely instead on the remainder of his anal-
Teewr
orwtess
asrspronlmn
yui.&ager,
Michael Brundy, testified, inter alia. that Kaiser has
We also note that, at par. 6 of the section entitled "Analysis and Con-
"a policy during Strikes not to allow tools to be removed
clusions," the Administrative Law Judge inartfully characterized Re-
basically to pressure employees into accepting [Kaiser's
spondents policy with respect to the removal of personally owned tools
1 2
»
^
*
1^1
, ,,
during the course of a strike. The record more accurately reflects that,
propossd] agreement
terms and going back to Work,
absent a strike. Respondent normally permits its employees to remove
their tools for personal use.
IAll dales are in 1980 unless otherwise specified.
Chairman Van de Water and Member Hunter find it unnecessary to
IBrundy also testified that another reason for preventing removal of
rely on Gary-Hobart Water Corporation, 210 NLRB 742 (1974), inasmuch
tools, although of lesser significance to Kaiser, is the desire to minimize
as there is no "no-strike" clause at issue herein.
Continued
259 NLRB No. 85
644
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that this policy was implemented during a strike in
After further discussion, however, Brundy permitted
July, as well as in some individual cases during strikes in
Martin and Boyle to enter the plant to apply a preserva-
1974 and 1977, but that the policy has never been put in
tive to their toolsets so they would not rust while in
writing nor otherwise generally published. Machinists
disuse.
Business Representative Samuel Willis testified, inter alia,
that he had never heard of such a policy until he learned
Analysis and Conclusions
that Kaiser had applied it during the July strike. Em-
The General Counsel, citing Erie Resistor,5 argues that
ployees Robert Martin and James Boyles testified, inter
Kaiser's admitted actions were "inherently destructive"
alia, that Kaiser's agent, Brundy, refused to permit them
of important employee rights under Section 7 of the Act,
to remove their tools during the July strike. I credit all
especially the right to strike, which is also the subject of
of that testimony as just summarized in the main text,
special recognition in Section 13 of the Act.6
and make certain supplemental findings below.
and make certain
supplemental findings below.
Kaiser, dismissing the quoted phrase above as mere
Kaiser makes steel products at a plant in Napa, Cali-
"
z wor dismissing
th
e
q
uoted
phrase above as mere
fornia,3 where it employs about 850 employees who are
nomic weapon" at its disposaisr simply used an "eco-
represented by 8 craft unions, including the Machinists.
no
w eapon" at
ts d sp
sal
ding
tools during the strike. Kaiser analogizes its actions to
Kaiser requires its 50-70 journeymen machinists to fur-
ohe
s
e
ser analo
es it at
t
nish their own tool sets to use in connection with their
another use of
economic weapons
legitimately re-
served to employers--that of the lockout. Kaiser further
normal work, just as it does its welders and electricians
served th employees' rights under the At
Kaiser f
er
who are represented by other craft unions. These sets are
arg
that employees rights under the Act have never
,,.,,,,,.been held to include the "right" to obtain outside em-
normally stored in the plant. The tool sets owned by its
p
en h l d
in cl ude t
e without interference b
he
journeymen machinists have a typical value of at least
loymet
ri
e
ithot iteeece
struck employer. Kaiser thus claims that the Act does
$2,500 per set. Except when they are on strike, Kaiser
o
e tu claim tat te
ct
permits its employees to take their tools out of the plant.
not prohibit ts tool-impoundment tactic.
The record does not suggest that Kaiser claims any right
Neither part
has called m
attention to strct deci-
to, or does, place any restrictions on, the use to which
onal preedent. Myown research discloses no cases
the employees may put those tools when they are thus
which are factually the same, but I believe that the
rthemoees m
p
toe
toos we
e
e t
Board's decision in Fraley & Schilling, Inc., 211 NLRB
In July, the Machinists and other craft unions includ-
422 (1974), is arguably pertinent. In that case, there was
In July, the Machinists and other craft unions includ-
a
'
.
d
ing the Boilermakers were bargaining with Kaiser for
strike by drivers for the employer, including some who
g the Bolermakers
were barga
g with
aser or
were "owner-operators" who had title to trucks sold to
new labor agreements to replace ones which had recent-
e
e
o
wner-opertor
who had
o
trucks sold
to
ly expired in their respective units. On July 11, the Boi-
hexc
by
the
l
ease-ba"
arrangements with the emloer.
lermakers called a strike and established picket lines at
exclusive strike,
th
e
employer s
t to
epoe
the Napa plant. Employees represented by the Machin-
D the
ru
stnrke, the employer sought to "repossess"
ists honored the picket line and refused to work until the
or
y t
ownrorators
ter
me
Boilermakers strike was called off on July 24.-
or at other locations away from the employer's terminal.
On July 14, journeyman machinist Martin located a
Other owner- operators who did not join the strike were
On July 14, journeyman machinist Martin located a
job with another employer to tide him over during the
ermtted to kee
their trucks where they normally
stored them. The Board found that the employer's con-
strike. The job likewise required that he furnish his own
store d them
T he Board found that he employer's con-
tools. Te jwent to
ise reired tat onhe fursame day to
duct in this regard violated Section 8(a) (3) and (1) of the
tools. He went to Kaiser's plant on the same day to
Act.
remove his toolset and Personnel Manager Brundy re-
A
fused to allow him to do so. When Martin pressed the
Although it is not clear that the striking owner-opera-
fused to allow him to do so. When Martin pressed the
issue, Brundy said to him: "The only way that you're
tors intended to use the trucks to gain revenues from
going to get any tools off this yard is if you terminate.
haln for other firms, the employer, in attempting to
That's up to you." Martin told fellow journeyman ma-
repossess the trucks, told one owner-operator that he
.That's up to you." Marti .
l
.
lo
,uem
ma
.....
would not be permitted "to use the truck elsewhere." Id.
chinist Boyle about his experience and, together, they re-
wt 436 n
turned to the plant for a second try. Brundy again re-
fused to permit either of them to remove their tools.
Although the employer in Frley & Schilling commit-
ted numerous independent violations of Section 8(a)(3)
and (1) of the Act, the Board did not link its finding of a
the possibility of sabotage or theft. I do not find it necessary, in view of
violation in the truck repossession instances to such addi-
my ultimate disposition, to determine whether these latter considerations
played any role whatsoever in prompting the development of Kaiser's
tional violations. The Board merely concluded that it
tool impoundment policy during strikes.
' In calendar year 1979, Kaiser sold and shipped from its Napa plant
N.LR.B. v. Erie Resistor Corp.. et at, 373 U.S. 221 (1963).
goods and materials valued in excess of S50,000 directly to customers
'Sec. 7 of the Act guarantees to employees, inter alia:
outside California.
' Kaiser would characterize the Machinists actions as a direct econom-
..
the right to form, join, or assist labor organizations, to bargain
ic strike; the General Counsel would characterize their behavior as a
collectively ... and to engage in other concerted activities for the
"sympathy strike"; i.e., a withholding of services calculated to help the
purpose of collective bargaining or other mutual aid or protection,
Boilermakers achieve their own economic aims. Both parties acknowl-
and ... the rght to refrain from any or all such activities....
edge, however, that the appropriate label for the Machinists strike par-
Sec. 13 of the Act states:
ticipation is irrelevant to a resolution of the central issue herein since,
Nothing in this Act, except as specifically provided for herein, shall
under either label, the refusal by Machinists to work was concerted ac-
be construed so as either to interfere with or impede or diminish in
tivity protected by the Act. See, e.g., Gary-Hobart Water Corporation, 210
any way the right to strike, or to affect the limitations or qualifica-
NLRB 742 (1974), enfd. 511 F.2d 284 (7th Cir. 1975), cert. denied 423
tions on that right.
U.S. 925 (1975).
'Kaiser's br., p. 4.
644
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that this policy was implemented during a strike in
After further discussion, however, Brundy permitted
July, as well as in some individual cases during strikes in
Martin and Boyle to enter the plant to apply a preserva-
1974 and 1977, but that the policy has never been put in
tive to their toolsets so they would not rust while in
writing nor otherwise generally published. Machinists
disuse.
Business Representative Samuel Willis testified, inter alia,
that he had never heard of such a policy until he learned
Analysis and Conclusions
that Kaiser had applied it during the July strike. Em-
The General Counsel, citing Erie Resistor,' argues that
ployees Robert Martin and James Boyles testified, inter
Kaiser's admitted actions were "inherently destructive"
alia, that Kaiser's agent, Brundy, refused to permit them
of important employee rights under Section 7 of the Act,
to remove their tools during the July strike. I credit all
especially the right to strike, which is also the subject of
of that testimony as just summarized in the main text,
special recognition in Section 13 of the Act."
and make certain supplemental findings below.
Ks
, d
t
q
t
p
a
a
m
Kaiser makes steel products at a plant in Napa, Cali-
"bziser, dismissing the quoted phrase above as mere
fornia,3 where it employs about 850 employees who are
nm
b u z z words," argues that Kaiser simply used an "ecor
represented by 8 craft unions, including the Machinists.
"omic weapon" at its disposal by impounding stinkers'
reprsened b
8 raf uninsincldin
th Macinits.
tools during the strike. Kaiser analogizes its actions to
Kaiser requires its 50-70 journeymen machinists to fur-
t
her u seo
"econke.
weana
legitimately
to
nish their own tool sets to use in connection with their
as
o
e
h er
u se
o f yeconomic
weaponsc
legitimately re-
normal work, just as it does its welders and electricians
arg e s t
employeright
uf
theoc ct have never
who are represented by other craft unions. These sets are
arue that employees' nghts under the Act have never
normally stored in the plant. The tool sets owned by its
bee n
h el d
t o
in c l ud e
th e "right" to obtain outside em-
journeymen machinists have a typical value of at least
ployment during a strike without interference by the
joureymn mchiistshav
a ypial vlueof t last
struck employer. Kaiser thus claims that the Act does
$2,500 per set. Except when they are on strike, Kaiser
n t
r
oit
itplo
l-impoundment
tatic.
permits its employees to take their tools out of the plant.
no t pro heb p
t
r
t s tool-impoundment tactic.
The record does not suggest that Kaiser claims any right.
N eith e r par,
h as c all ed
m y att6 " 110 " ,1° &t n ct
d eci-
Therecrd
oesno
suges tht
Kisr
caim
an riht
sional precedent. My own research discloses no cases
to, or does, place any restrictions on, the use to which
swih a
r
factualy the
search
bieve na the
the employees may put those tools when they are thus
B
w h c h
aredeioually the samec but I believe that the
removed.
Board's decision in Fraley & Schilling, Inc., 211 NLRB
In July, the Machinists and other craft unions includ-
4 2 2
a
974), is arguably pertinent. In that case, there was
ing the Boilermakers were bargaining with Kaiser for
a st
w
ke b y d
o
n
v e rs f o r t h e employer, including some who
new labor agreements to replace ones which had recent-
tw ere "owner-operators" who had title to trucks sold to
ly expired in their respective units. On July 11, the Boi-
.h em, by
t h e
em
ae
o y e
a
b u t
w h o
al
ae
o had entered into
lermakers called a strike and established picket lines at
Dexclusive leas back
arrangements with the employers
the Napa plant. Employees represented by the Machin-
th tuc the storked
the employer sought to "repossess"
ists honored the picket line and refused to work until the
o
t h e
o
ru c ks slo r ed
b y t h e owner-operators at their homes
Boilermakers strike was called off on July 24. 4
o r a t o t h e r locations away from the employer s terminal.
On July 14, journeyman machinist Martin located a
Other owner- operators who did not join the stnke were
job with another employer to tide him over during the
sp e rm
t e d
t o
hmT
p their trucks where they normally
strike. The job likewise required that he furnish his own
st o re d
t h em
i
T h e Board found that
i
he employer's con-
tools. He went to Kaiser's plant on the same day to
d u ct.
n t lMs regar1 ^olated Section 8(a) (3) and (1) of the
remove his toolset and Personnel Manager Brundy re-
Altog i i n
c
ta
to
fused to allow him to do so. When Martin pressed theAlthough it is not clear that the s
ing owner-opera-
issue, Brundy said to him: "The only way that you're
tors intended to use the trucks to gain revenues from
going to get any tools off this yard is if you terminate.
rhep l
s fo r other firms, the employer, in attempting to
That's up to you." Martin told fellow journeyman ma-
w
dpo ts
e
d
u
the trucks tol one owner-operator that he
chinist Boyle about his experience and, together, they re-
w o u l d n o t b e perm'tted "to use the truck elsewhere." Id.
turned to the plant for a second try. Brundy again re-
A
the e
i
raley
o il
cmi
fused to permit either of them to remove their tools.
Although the employer in Fraley &r Schilling commit-
ted numerous independent violations of Section 8(a)(3)
~--~~.-, .,.,,..
r ...
*
,
~~and (1) of the Act, the Board did not link its finding of a
the possibility of sabotage or theft. I do not find it necessary, in view of
;andl )of;
the Act, theBord
idno
inkt
its* f indi ng
f
my ultimate disposition, to determine whether these latter considerations
violation in the truck repossession instances to such addi-
played any role whatsoever in prompting the development of Kaiser's
tional Violations. The Board merely concluded that it
tool impoundment policy during strikes.
I In calendar year 1979, Kaiser sold and shipped from its Napa plant
IN.L^R.B. v. Erie Resistor Corp.. el at, 373 U.S. 221 (1963).
goods and materials valued in excess of $50,000 directly to customers
I Sec. 7 of the Act guarantees to employees, inter alia:
outside California.
I Kaiser would characterize the Machinists actions as a direct econom-„
th e right to form, join, or assist lab o r organizations, to bargain
ic strike; the General Counsel would characterize their behavior as a
collectively ... and to engage in other concerted activities for the
"sympathy strike"; i.e., a withholding of services calculated to help the
purpose o f collective bargaining or other mutual aid or protection,
Boilermakers achieve their own economic aims. Both parties acknowl-
and ... the right to refrain from any or all such activities ....
edge, however, that the appropriate label for the Machinists strike par-
Sec. 13 of the Act states:
ticipation is irrelevant to a resolution of the central issue herein since,
Nothing in this Act, except as specifically provided for herein, shall
under either label, the refusal by Machinists to work was concertnd ac-
be construed so as either to interfere with or impede or diminish in
tivity protected by the Act. See, e.g., Gary-Hobarl Water Corporation, 210
any way the right to strike, or to affect the limitations or qualifica-
NLRB 742 (1974), enfd. 511 F.2d 284 (7th Cir. 1975), cert. denied 423
tions on that right.
U.S. 925 (1975).
'Kaiser's br., p. 4.
644
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that this policy was implemented during a strike in
After further discussion, however, Brundy permitted
July, as well as in some individual cases during strikes in
Martin and Boyle to enter the plant to apply a preserva-
1974 and 1977, but that the policy has never been put in
tive to their toolsets so they would not rust while in
writing nor otherwise generally published. Machinists
disuse.
Business Representative Samuel Willis testified, inter alia,
that he had never heard of such a policy until he learned
Analysis and Conclusions
that Kaiser had applied it during the July strike. Em-
The General Counsel, citing Erie Resistor,' argues that
ployees Robert Martin and James Boyles testified, inter
Kaiser's admitted actions were "inherently destructive"
alia, that Kaiser's agent, Brundy, refused to permit them
of important employee rights under Section 7 of the Act,
to remove their tools during the July strike. I credit all
especially the right to strike, which is also the subject of
of that testimony as just summarized in the main text,
special recognition in Section 13 of the Act."
and make certain supplemental findings below.
Ks
, d
t
q
t
p
a
a
m
Kaiser makes steel products at a plant in Napa, Cali-
"bziser, dismissing the quoted phrase above as mere
fornia,3 where it employs about 850 employees who are
nm
b u z z words," argues that Kaiser simply used an "ecor
represented by 8 craft unions, including the Machinists.
"omic weapon" at its disposal by impounding stinkers'
reprsened b
8 raf uninsincldin
th Macinits.
tools during the strike. Kaiser analogizes its actions to
Kaiser requires its 50-70 journeymen machinists to fur-
t
her u seo
"econke.
weana
legitimately
to
nish their own tool sets to use in connection with their
as
o
e
h er
u se
o f yeconomic
weaponsc
legitimately re-
normal work, just as it does its welders and electricians
arg e s t
employeright
uf
th
e
Act
have never
who are represented by other craft unions. These sets are
arue that employees' nghts under the Act have never
normally stored in the plant. The tool sets owned by its
bee n
h el d
t o
in c l ud e
th e "right" to obtain outside em-
journeymen machinists have a typical value of at least
ployment during a strike without interference by the
joureymn mchiistshav
a ypial vlueof t last
struck employer. Kaiser thus claims that the Act does
$2,500 per set. Except when they are on strike, Kaiser
n t
r
oit
itplo
l-impoundment
tatic.
permits its employees to take their tools out of the plant.
no t pro heb p
t
r
t s tool-impoundment tactic.
The record does not suggest that Kaiser claims any right
N e
s
th e r prece h as c all ed
m y
a
or
e n t
a
o n
ds c
t
o
ct
d ec
a-
to, or does, place any restrictions on, the use to which
swih a
r
factualy the
search
bieve na the
the employees may put those tools when they are thus
B
w h c h
aredeioually the samec but I believe that the
removed.
Board's decision in Fraley & Schilling, Inc., 211 NLRB
In July, the Machinists and other craft unions includ-
4 2 2
a
974), is arguably pertinent. In that case, there was
ing the Boilermakers were bargaining with Kaiser for
a st
w
ke b y d
o
n
v e rs f o r t h e employer, including some who
new labor agreements to replace ones which had recent-
tw ere "owner-operators" who had title to trucks sold to
ly expired in their respective units. On July 11, the Boi-
.h em, by
t h e
em
ae
o y e
a
b u t
w h o
al
ae
o had entered into
lermakers called a strike and established picket lines at
Dexclusive leas back
arrangements with the employers
the Napa plant. Employees represented by the Machin-
th tuc the storked
the employer sought to "repossess"
ists honored the picket line and refused to work until the
o
t h e
o
ru c ks slo r ed
b y t h e owner-operators at their homes
Boilermakers strike was called off on July 24. 4
o r a t o t h e r locations away from the employer s terminal.
On July 14, journeyman machinist Martin located a
Other owner- operators who did not join the stnke were
job with another employer to tide him over during the
sp e rm
t e d
t o
hmT
p their trucks where they normally
strike. The job likewise required that he furnish his own
st o re d
t h em
i
T h e Board found that
i
he employer's con-
tools. He went to Kaiser's plant on the same day to
d u ct.
n t lMs regar1 ^olated Section 8(a) (3) and (1) of the
remove his toolset and Personnel Manager Brundy re-
Altog i i n
c
ta
to
fused to allow him to do so. When Martin pressed theAlthough it is not clear that the s
ing owner-opera-
issue, Brundy said to him: "The only way that you're
tors intended to use the trucks to gain revenues from
going to get any tools off this yard is if you terminate.
h au l ns eor
other firms, the employer, in attempting to
That's up to you." Martin told fellow journeyman ma-
w
dpo ts
e
d
u
the trucks tol one owner-operator that he
chinist Boyle about his experience and, together, they re-
w o u l d n o t b e Permitted "to use the truck elsewhere." Id.
turned to the plant for a second try. Brundy again re-
A
the e
i
raley &
il
cmi
fused to permit either of them to remove their tools.
Although the employer in Fraley &r Schilling commit-
ted numerous independent violations of Section 8(a)(3)
~--~~.-,
.
,.,,..
r .. *
*
,~~and
(1) of the Act, the Board did not link its finding of a
the possibility of sabotage or theft. I do not find it necessary, in view of
;andl )of;
the Act, theBord
idno
inkt
its* f indi ng
f
my ultimate disposition, to determine whether these latter considerations
violation in the truck repossession instances to such addi-
played any role whatsoever in prompting the development of Kaiser's
tional Violations. The Board merely concluded that it
tool impoundment policy during strikes.
I In calendar year 1979, Kaiser sold and shipped from its Napa plant
IN.L^R.B. v. Erie Resistor Corp.. el at, 373 U.S. 221 (1963).
goods and materials valued in excess of $50,000 directly to customers
I Sec. 7 of the Act guarantees to employees, inter alia:
outside California.
I Kaiser would characterize the Machinists actions as a direct econom-„
th e right to form, join, or assist lab o r organizations, to bargain
ic strike; the General Counsel would characterize their behavior as a
collectively ... and to engage in other concerted activities for the
"sympathy strike"; i.e., a withholding of services calculated to help the
purpose o f collective bargaining or other mutual aid or protection,
Boilermakers achieve their own economic aims. Both parties acknowl-
and ... the right to refrain from any or all such activities ....
edge, however, that the appropriate label for the Machinists strike par-
Sec. 13 of the Act states:
ticipation is irrelevant to a resolution of the central issue herein since,
Nothing in this Act, except as specifically provided for herein, shall
under either label, the refusal by Machinists to work was concertnd ac-
be construed so as either to interfere with or impede or diminish in
tivity protected by the Act. See, e.g., Gary-Hobarl Water Corporation, 210
any way the right to strike, or to affect the limitations or qualifica-
NLRB 742 (1974), enfd. 511 F.2d 284 (7th Cir. 1975), cert. denied 423
tions on that right.
U.S. 925 (1975).
'Kaiser's br., p. 4.
644
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that this policy was implemented during a strike in
After further discussion, however, Brundy permitted
July, as well as in some individual cases during strikes in
Martin and Boyle to enter the plant to apply a preserva-
1974 and 1977, but that the policy has never been put in
tive to their toolsets so they would not rust while in
writing nor otherwise generally published. Machinists
disuse.
Business Representative Samuel Willis testified, inter alia,
that he had never heard of such a policy until he learned
Analysis and Conclusions
that Kaiser had applied it during the July strike. Em-
The General Counsel, citing Erie Resistor,' argues that
ployees Robert Martin and James Boyles testified, inter
Kaiser's admitted actions were "inherently destructive"
alia, that Kaiser's agent, Brundy, refused to permit them
of important employee rights under Section 7 of the Act,
to remove their tools during the July strike. I credit all
especially the right to strike, which is also the subject of
of that testimony as just summarized in the main text,
special recognition in Section 13 of the Act."
and make certain supplemental findings below.
Ks
, d
t
q
t
p
a
a
m
Kaiser makes steel products at a plant in Napa, Cali-
"bziser, dismissing the quoted phrase above as mere
fornia,3 where it employs about 850 employees who are
nm
b u z z words," argues that Kaiser simply used an "ecor
represented by 8 craft unions, including the Machinists.
"omic weapon" at its disposal by impounding stinkers'
reprsened b
8 raf uninsincldin
th Macinits.
tools during the strike. Kaiser analogizes its actions to
Kaiser requires its 50-70 journeymen machinists to fur-
t
her u seo
"econke.
weana
legitimately
to
nish their own tool sets to use in connection with their
as
o
e
h er
u se
o f yeconomic
weaponsc
legitimately re-
normal work, just as it does its welders and electricians
arg e s t
employeright
uf
theoc ct have never
who are represented by other craft unions. These sets are
arue that employees' nghts under the Act have never
normally stored in the plant. The tool sets owned by its
bee n
h el d
t o
in c l ud e
th e "right" to obtain outside em-
journeymen machinists have a typical value of at least
ployment during a strike without interference by the
joureymn mchiistshav
a ypial vlueof t last
struck employer. Kaiser thus claims that the Act does
$2,500 per set. Except when they are on strike, Kaiser
n t
r
oit
itplo
l-impoundment
tatic.
permits its employees to take their tools out of the plant.
no t pro heb p
t
r
t s tool-impoundment tactic.
The record does not suggest that Kaiser claims any right
N e
s
th e r prece h as c all ed
m y
a
or
e n t
a
o n
ds c
t
o
ct
d ec
a-
to, or does, place any restrictions on, the use to which
swih a
r
factualy the
search
bieve na the
the employees may put those tools when they are thus
B
w h c h
aredeioually the samec but I believe that the
removed.
Board's decision in Fraley & Schilling, Inc., 211 NLRB
In July, the Machinists and other craft unions includ-
4 2 2 (1974), is arguably pertinent. In that case, there was
ing the Boilermakers were bargaining with Kaiser for
a st
w
ke b y d
o
n
v e rs f o r t h e employer, including some who
new labor agreements to replace ones which had recent-
tw ere "owner-operators" who had title to trucks sold to
ly expired in their respective units. On July 11, the Boi-
.h em, by
t h e
em
ae
o y e
a
b u t
w h o
al
ae
o had entered into
lermakers called a strike and established picket lines at
Dexclusive leas back
arrangements with the employers
the Napa plant. Employees represented by the Machin-
th tuc the storked
the employer sought to "repossess"
ists honored the picket line and refused to work until the
o
t h e
o
ru c ks slo r ed
b y t h e owner-operators at their homes
Boilermakers strike was called off on July 24. 4
o r a t o t h e r locations away from the employer s terminal.
On July 14, journeyman machinist Martin located a
Other owner- operators who did not join the stnke were
job with another employer to tide him over during the
sp e rm
t e d
t o
hmT
p their trucks where they normally
strike. The job likewise required that he furnish his own
st o re d
t h em
i
T h e Board found that
i
he employer's con-
tools. He went to Kaiser's plant on the same day to
d u ct.
n t lMs regar1 ^olated Section 8(a) (3) and (1) of the
remove his toolset and Personnel Manager Brundy re-
Altog i i n
c
ta
to
fused to allow him to do so. When Martin pressed theAlthough it is not clear that the s
ing owner-opera-
issue, Brundy said to him: "The only way that you're
tors intended to use the trucks to gain revenues from
going to get any tools off this yard is if you terminate.
rhep l
s fo r other firms, the employer, in attempting to
That's up to you." Martin told fellow journeyman ma-
w
dpo ts
e
d
u
the trucks tol one owner-operator that he
chinist Boyle about his experience and, together, they re-
w o u l d n o t b e Permitted "to use the truck elsewhere." Id.
turned to the plant for a second try. Brundy again re-
A
the e
i
raley &
il
cmi
fused to permit either of them to remove their tools.
Although the employer in Fraley &r Schilling commit-
ted numerous independent violations of Section 8(a)(3)
~--~~.-,
.
,.,,..
r .. *
*
,~~and
(1) of the Act, the Board did not link its finding of a
the possibility of sabotage or theft. I do not find it necessary, in view of
;andl )of;
the Act, theBord
idno
inkt
its* f indi ng
f
my ultimate disposition, to determine whether these latter considerations
violation in the truck repossession instances to such addi-
played any role whatsoever in prompting the development of Kaiser's
tional Violations. The Board merely concluded that it
tool impoundment policy during strikes.
I In calendar year 1979, Kaiser sold and shipped from its Napa plant
IN.L^R.B. v. Erie Resistor Corp.. el at, 373 U.S. 221 (1963).
goods and materials valued in excess of $50,000 directly to customers
I Sec. 7 of the Act guarantees to employees, inter alia:
outside California.
I Kaiser would characterize the Machinists actions as a direct econom-„
th e right to form, join, or assist lab o r organizations, to bargain
ic strike; the General Counsel would characterize their behavior as a
collectively ... and to engage in other concerted activities for the
"sympathy strike"; i.e., a withholding of services calculated to help the
purpose o f collective bargaining or other mutual aid or protection,
Boilermakers achieve their own economic aims. Both parties acknowl-
and ... the right to refrain from any or all such activities ....
edge, however, that the appropriate label for the Machinists strike par-
Sec. 13 of the Act states:
ticipation is irrelevant to a resolution of the central issue herein since,
Nothing in this Act, except as specifically provided for herein, shall
under either label, the refusal by Machinists to work was concertnd ac-
be construed so as either to interfere with or impede or diminish in
tivity protected by the Act. See, e.g., Gary-Hobarl Water Corporation, 210
any way the right to strike, or to affect the limitations or qualifica-
NLRB 742 (1974), enfd. 511 F.2d 284 (7th Cir. 1975), cert. denied 423
tions on that right.
U.S. 925 (1975).
'Kaiser's br., p. 4.
KAISER STEEL CORPORATION
645
was "discriminatory" to "penalize" strikers in a "term or
the interest of the employer in operating his business in a
condition of employment" by repossessing the trucks. Id.
particular manner and of balancing in the light of the
at 423. No extended rationale was offered for this legal
Act and its policy the intended consequences upon em-
conclusion and, therefore, its applicability to the instant
ployee rights against the business ends to be served by
case is not entirely clear.
the employer's conduct." Erie Resistor, supra at 229.
The facts in the instant case are seemingly less favora-
Indeed, the Court in Brown Food adhered to the view
ble to Kaiser on the point at issuc than those in Fraley &
that the Board must, in the exercise of its proper func-
Schilling were to that employer. There, the employer at
tion, engage in such balancing tasks (id. at 282; see also
least had a colorable claim to have the trucks used only
American Ship Building, supra at 309).
in connection with his own work since he had an "exclu-
Accordingly, while the Board may not be an "arbiter
sive lease-back" arrangement with the owner-operators.
of the sorts of economic weapons the parties can use,"
By contrast, Kaiser has not introduced evidence which
neither may it abdicate its balancing task where, as I
would suggest that the machinists tools were to be used
conclude below, Kaiser's choice of "economic weapons"
"exclusively" in connection with work at Kaiser. Indeed,
conflicts with important employee rights under the Act.
to the contrary, the fact that nonstriking employees are
As the Court has recognized, this is an "often delicate"
permitted to remove their tools from the plant justifies
task, and it is especially so where the Court has not
the inference that they may be used by such nonstrikers
clearly defined the extent to which the "economic"
for other employment.
impact of an employer's actions on the exercise of pro-
Accordingly, I would sustain the complaint herein on
tected rights by employees may properly influence the
the strength of the Board's disposition of Fraley & Schil-
"balancing" process
ling. My further analyses and conclusions below address
It is clear, however, that the Board need not be blind
Kaiser's arguments on their merits should a reviewing
to the potential economic impact on the exercise of em-
body determine that this is a case of first impression.
ployees' rights of permitting an employer to wield cer-
Kaiser stresses that its motive was not "antiunion" or
ta
weapons. Indeed, it was with a view to the likely
"hostile," citing its longstanding "amicable" bargaining
economic consequences that the Court was moved to
relationship with the Machinists. This much may be ac-
conclude in Brown Foods that unless employers faced
knowledged: Kaiser's tool-impoundment actions were
with "whipsaw" strike tactics were permitted to lock out
not shown to have been part of any broader attempt to
union-represented employees and to continue to operate
"bust" the Machinists and to remove it as a bargaining
their business with replacements, they would be virtually
agent. Cf. Fraley & Schilling, supra. Rather, Kaiser was
h el r
u s
es wth
lac
ts thee
viru
simply exploiting its position as a de facto possessor" of
helpless to respond to such tactics.
Given those unique
the tools belonging to its employees to make it more dif-
consistent with a l
egitiate
business purpose" for the
ficult for them to obtain employment in their trade else-
onsistent with a legitimate business purpose
for the
where during the strike-and thus to make them more
employer to have locked out nonstriking employees and
tractable to Kaiser's bargaining demands
e
continued its operations with replacements. Id. at 285.
tractable to Kaiser's bargaining demands.
Kaiser insists on this latter point, characterizing its ac-
Accordingly, the question presented here by Kaiser's
tions as merely an effort to use "economic weapons" at
attempt to prevent strikers from obtaining work else-
its disposal to aid in achieving its collective-bargaining
where is not disposed of in Kaiser's favor merely by la-
aims. And Kaiser places ultimate reliance on the admoni-
beling Kaiser's actions as the use of an "economic
tion of the Court in Brown Food Store9 that "the Act
weapon," nor by establishing that Kaiser was merely at-
does not constitute the Board as an 'arbiter of the sort of
tempting to enhance its relative bargaining strength in its
economic weapons the parties can use in seeking to gain
tool-impoundment tactic, and was not trying to achieve a
acceptance of their bargaining demands."' (Id. at 283.)
total removal of the Machinists as the employees' bar-
Kaiser further correctly notes that employers have been
gaining agent. Instead, in assessing the legality of Kai-
sustained in the use of certain "economic weapons"
ser's efforts to preclude strikers from gaining other em-
which impinge on the exercise of statutory rights, such
ployment during the strike, I must take into account the
as the use of postimpasse lockouts (American Ship Build-
potential of that action for "creating visible and continu-
ing, supra), and even lockouts while continuing to oper-
ing obstacles to the future exercise of employee rights.""
ate the
business
with
replacements
(Brown
Food,
In doing so, I start with the observation-to me an in-
supra).Thus, Kaiser would apparently have me hold that
escapable one-that Kaiser's tool-impoundment was a
once an employer's actions against strikers may be char-
plain and visible act of discrimination directed against
acterized as the use of "economic weapons" which are
strikers-and only strikers-which would necessarily be
merely employed in furtherance of some bargaining aim,
viewed by them as punitive. Strikers could draw no
such conduct is beyond the reach of the Act's proscrip-
other conclusion from the fact that Kaiser permits em-
tions.
ployees to remove their tools, including for use in out-
I reject Kaiser's position. Neither Brown Food nor
American Ship Building took the Board out of the busi-
o
'd.
at 284-285, in which the Court sympathized with the "dilemma"
ness of performing the "delicate task ...
of weighing
f an employer-member of a multiemployer bargaining group in such a
situation, noting that the whipsaw strike "enjoys an almost inescapable
the interests of employees in concerted activity against
prospect of success" unless a nonstruck employer-member may defensive-
See fn. 15, supra
ly lock out unionized employees and continue to operate with replace-
N.LR.B. v. Brown et at, d/b/a Brown Food Store, 380 U.S. 278
ments.
(1965); see also American Ship Building Co. v. N.L.R.B., 380 U.S. 300
" Portland Willamette Company v. N.LR.B.. 534 F.2d 1331, 1334 (9th
(1965), on which Kaiser also relies.
Cir. 1976).
KAISER STEEL CORPORATION
645
was "discriminatory" to "penalize" strikers in a "term or
the interest of the employer in operating his business in a
condition of employment" by repossessing the trucks. Id.
particular manner and of balancing in the light of the
at 423. No extended rationale was offered for this legal
Act and its policy the intended consequences upon em-
conclusion and, therefore, its applicability to the instant
ployee rights against the business ends to be served by
case is not entirely clear.
the employer's conduct." Erie Resistor, supra at 229.
The facts in the instant case are seemingly less favora-
Indeed, the Court in Brown Food adhered to the view
ble to Kaiser on the point at issue than those in Fraley &
that the Board must, in the exercise of its proper func-
Schilling were to that employer. There, the employer at
tion, engage in such balancing tasks (id. at 282; see also
least had a colorable claim to have the trucks used only
American Ship Building, supra at 309).
in connection with his own work since he had an "exclu-
Accordingly, while the Board may not be an "arbiter
sive lease-back" arrangement with the owner-operators.
of the sorts of economic weapons the parties can use,"
By contrast, Kaiser has not introduced evidence which
neither may it abdicate its balancing task where, as I
would suggest that the machinists tools were to be used
conclude below, Kaiser's choice of "economic weapons"
"exclusively" in connection with work at Kaiser. Indeed,
conflicts with important employee rights under the Act.
to the contrary, the fact that nonstriking employees are
As the Court has recognized, this is an "often delicate"
permitted to remove their tools from the plant justifies
task, and it is especially so where the Court has not
the inference that they may be used by such nonstrikers
clearly defined the extent to which the "economic"
for other employment.
impact of an employer's actions on the exercise of pro-
Accordingly, I would sustain the complaint herein on
tected rights by employees may properly influence the
the strength of the Board's disposition of Fraley a Schil-
"balancing" process.
ling. My further analyses and conclusions below address
It is clear, however, that the Board need not be blind
Kaiser's arguments on their merits should a reviewing
to the potential economic impact on the exercise of em-
body determine that this is a case of first impression.
ployees' rights of permitting an employer to wield cer-
Kaiser stresses that its motive was not "antiunion" or
t
weapons. Indeed, it was with a view to the likely
"hostile," citing its longstanding "amicable" bargaining
economic consequences that the Court was moved to
relationship with the Machinists. This much may be ac-
c
l
i
B
F
t
u
employers faced
knowledged: Kaiser's tool-impoundment actions were
with "whipsaw" strike tactics were permitted to lock out
not shown to have been part of any broader attempt to
u
e
a
t
c
i
t oprt
"bust" the Machinists and to remove it as a bargaining
reiresines
eplacees,
to
wouldnbe virale
agent. Cf. Fraley At Schilling, supra. Rather, Kaiser was
t h el r b u ss
n es s with replacements, they would be virtually
simply exploiting its position as a de facto possessor' of
helpless to respond to such tactics. "> Given those unique
simpy eplotin
itspostio asa d faco pssesor of
economic realities, the Court therefore found it "wholly
the tools belonging to its employees to make it more dif-
consist
reaithes legiti
tereforpose"
f
the
ficult for them to obtain employment in their trade else-
e
lnsistent with a legitimate business purpose
for the
where during the strike-and thus to make them more
cotployer to have locked out nonstra nemg employees and
tractable to Kaiser's bargaining demands.continued
its operations with replacements. Id. at 285.
Kaiser insists on this latter point, characterizing its ac-
Accordingly, the question presented here by Kaiser's
tions as merely an effort to use "economic weapons" at
attempt to prevent strikers from obtaining work else-
its disposal to aid in achieving its collective-bargaining
where is not disposed of in Kaiser's favor merely by la-
aims. And Kaiser places ultimate reliance on the admoni-
beling Kaiser's actions as the use of an "economic
tion of the Court in Brown Food Store' that "the Act
weapon," nor by establishing that Kaiser was merely at-
does not constitute the Board as an 'arbiter of the sort of
tempting to enhance its relative bargaining strength in its
economic weapons the parties can use in seeking to gain
tool-impoundment tactic, and was not trying to achieve a
acceptance of their bargaining demands."' (Id. at 283.)
total removal of the Machinists as the employees' bar-
Kaiser further correctly notes that employers have been
gaining agent. Instead, in assessing the legality of Kai-
sustained in the use of certain "economic weapons"
ser' s effo rts to preclude strikers from gaining other em-
which impinge on the exercise of statutory rights, such
ployment during the strike, I must take into account the
as the use of postimpasse lockouts (American Ship Build-
potential of that action for "creating visible and continu-
ing, supra), and even lockouts while continuing to oper-
ing obstacles to the future exercise of employee rights.""
ate the
business
with
replacements
(Brown
Food.
In doing so, I start with the observation-to me an in-
supra).Thus, Kaiser would apparently have me hold that
escapable one-that Kaiser's tool-impoundment was a
once an employer's actions against strikers may be char-
plain and visible act of discrimination directed against
acterized as the use of "economic weapons" which are
strikers-and only strikers-which would necessarily be
merely employed in furtherance of some bargaining aim,
viewed by them as punitive. Strikers could draw no
such conduct is beyond the reach of the Act's proscrip-
other conclusion from the fact that Kaiser permits em-
tions.
ployees to remove their tools, including for use in out-
I reject Kaiser's position. Neither Brown Food nor
American Ship Building took the Board out of
the busi-
" I
d .
a t 284-285, in which the Court sympathized with the "dilemma"
ness of performing the "delicate task ...
of
weighing
of an employer-member of a multiemployer bargaining group in such a
situation, noting that the whipsaw strike "enjoys an almost inescapable
the interests of employees in concerted activity against
prospect of success" unless a nonstruck employer-member may defensive-
See fn. 15, supra.ly
lock out unionized employees and continue to operate with replace-
N.LR.B. v. Brown et a., d/b/a Brown Food Store, 380 U.S. 278
ments.
(1965); see also American Ship Building Co. v. N.LR.B., 380 U.S. 300
"1 Portland Willametle Company v. N.LR.B., 534 F.2d 1331, 1334 (9th
(1965), on which Kaiser also relies.
Cir. 1976).
KAISER STEEL CORPORATION
645
was "discriminatory" to "penalize" strikers in a "term or
the interest of the employer in operating his business in a
condition of employment" by repossessing the trucks. Id.
particular manner and of balancing in the light of the
at 423. No extended rationale was offered for this legal
Act and its policy the intended consequences upon em-
conclusion and, therefore, its applicability to the instant
ployee rights against the business ends to be served by
case is not entirely clear.
the employer's conduct." Erie Resistor, supra at 229.
The facts in the instant case are seemingly less favora-
Indeed, the Court in Brown Food adhered to the view
ble to Kaiser on the point at issue than those in Fraley &
that the Board must, in the exercise of its proper func-
Schilling were to that employer. There, the employer at
tion, engage in such balancing tasks (id. at 282; see also
least had a colorable claim to have the trucks used only
American Ship Building, supra at 309).
in connection with his own work since he had an "exclu-
Accordingly, while the Board may not be an "arbiter
sive lease-back" arrangement with the owner-operators.
of the sorts of economic weapons the parties can use,"
By contrast, Kaiser has not introduced evidence which
neither may it abdicate its balancing task where, as I
would suggest that the machinists tools were to be used
conclude below, Kaiser's choice of "economic weapons"
"exclusively" in connection with work at Kaiser. Indeed,
conflicts with important employee rights under the Act.
to the contrary, the fact that nonstriking employees are
As the Court has recognized, this is an "often delicate"
permitted to remove their tools from the plant justifies
task, and it is especially so where the Court has not
the inference that they may be used by such nonstrikers
clearly defined the extent to which the "economic"
for other employment.
impact of an employer's actions on the exercise of pro-
Accordingly, I would sustain the complaint herein on
tected rights by employees may properly influence the
the strength of the Board's disposition of Fraley a Schil-
"balancing" process.
ling. My further analyses and conclusions below address
It is clear, however, that the Board need not be blind
Kaiser's arguments on their merits should a reviewing
to the potential economic impact on the exercise of em-
body determine that this is a case of first impression.
ployees' rights of permitting an employer to wield cer-
Kaiser stresses that its motive was not "antiunion" or
t
weapons. Indeed, it was with a view to the likely
"hostile," citing its longstanding "amicable" bargaining
economic consequences that the Court was moved to
relationship with the Machinists. This much may be ac-
c
l
i
B
F
t
u
employers faced
knowledged: Kaiser's tool-impoundment actions were
with "whipsaw" strike tactics were permitted to lock out
not shown to have been part of any broader attempt to
u
e
a
t
c
i
t oprt
"bust" the Machinists and to remove it as a bargaining
reiresines
eplacees,
to
wouldnbe virale
agent. Cf. Fraley At Schilling, supra. Rather, Kaiser was
t h el r b u ss
n es s with replacements, they would be virtually
simply exploiting its position as a de facto possessor' of
helpless to respond to such tactics. "> Given those unique
simpy eplotin
itspostio asa d faco pssesor of
economic realities, the Court therefore found it "wholly
the tools belonging to its employees to make it more dif-
consist
reaithes legiti
tereforpose"
f
the
ficult for them to obtain employment in their trade else-
e
lnsistent with a legitimate business purpose
for the
where during the strike-and thus to make them more
cotployer to have locked out nonstra nemg employees and
tractable to Kaiser's bargaining demands.continued
its operations with replacements. Id. at 285.
Kaiser insists on this latter point, characterizing its ac-
Accordingly, the question presented here by Kaiser's
tions as merely an effort to use "economic weapons" at
attempt to prevent strikers from obtaining work else-
its disposal to aid in achieving its collective-bargaining
where is not disposed of in Kaiser's favor merely by la-
aims. And Kaiser places ultimate reliance on the admoni-
beling Kaiser's actions as the use of an "economic
tion of the Court in Brown Food Store' that "the Act
weapon," nor by establishing that Kaiser was merely at-
does not constitute the Board as an 'arbiter of the sort of
tempting to enhance its relative bargaining strength in its
economic weapons the parties can use in seeking to gain
tool-impoundment tactic, and was not trying to achieve a
acceptance of their bargaining demands."' (Id. at 283.)
total removal of the Machinists as the employees' bar-
Kaiser further correctly notes that employers have been
gaining agent. Instead, in assessing the legality of Kai-
sustained in the use of certain "economic weapons"
ser' s effo rts to preclude strikers from gaining other em-
which impinge on the exercise of statutory rights, such
ployment during the strike, I must take into account the
as the use of postimpasse lockouts (American Ship Build-
potential of that action for "creating visible and continu-
ing, supra), and even lockouts while continuing to oper-
ing obstacles to the future exercise of employee rights.""
ate the
business
with
replacements
(Brown
Food.
In doing so, I start with the observation-to me an in-
supra).Thus, Kaiser would apparently have me hold that
escapable one-that Kaiser's tool-impoundment was a
once an employer's actions against strikers may be char-
plain and visible act of discrimination directed against
acterized as the use of "economic weapons" which are
strikers-and only strikers-which would necessarily be
merely employed in furtherance of some bargaining aim,
viewed by them as punitive. Strikers could draw no
such conduct is beyond the reach of the Act's proscrip-
other conclusion from the fact that Kaiser permits em-
tions.
ployees to remove their tools, including for use in out-
I reject Kaiser's position. Neither Brown Food nor
American Ship Building took the Board out of
the busi-
" I
d .
a t 284-285, in which the Court sympathized with the "dilemma"
ness of performing the "delicate task ...
of
weighing
of an employer-member of a multiemployer bargaining group in such a
situation, noting that the whipsaw strike "enjoys an almost inescapable
the interests of employees in concerted activity against
prospect of success" unless a nonstruck employer-member may defensive-
See fn. 15, supra.ly
lock out unionized employees and continue to operate with replace-
N.LR.B. v. Brown et a., d/b/a Brown Food Store, 380 U.S. 278
ments.
(1965); see also American Ship Building Co. v. N.LR.B., 380 U.S. 300
"1 Portland Willametle Company v. N.LR.B., 534 F.2d 1331, 1334 (9th
(1965), on which Kaiser also relies.
Cir. 1976).
KAISER STEEL CORPORATION
645
was "discriminatory" to "penalize" strikers in a "term or
the interest of the employer in operating his business in a
condition of employment" by repossessing the trucks. Id.
particular manner and of balancing in the light of the
at 423. No extended rationale was offered for this legal
Act and its policy the intended consequences upon em-
conclusion and, therefore, its applicability to the instant
ployee rights against the business ends to be served by
case is not entirely clear.
the employer's conduct." Erie Resistor, supra at 229.
The facts in the instant case are seemingly less favora-
Indeed, the Court in Brown Food adhered to the view
ble to Kaiser on the point at issue than those in Fraley &
that the Board must, in the exercise of its proper func-
Schilling were to that employer. There, the employer at
tion, engage in such balancing tasks (id. at 282; see also
least had a colorable claim to have the trucks used only
American Ship Building, supra at 309).
in connection with his own work since he had an "exclu-
Accordingly, while the Board may not be an "arbiter
sive lease-back" arrangement with the owner-operators.
of the sorts of economic weapons the parties can use,"
By contrast, Kaiser has not introduced evidence which
neither may it abdicate its balancing task where, as I
would suggest that the machinists tools were to be used
conclude below, Kaiser's choice of "economic weapons"
"exclusively" in connection with work at Kaiser. Indeed,
conflicts with important employee rights under the Act.
to the contrary, the fact that nonstriking employees are
As the Court has recognized, this is an "often delicate"
permitted to remove their tools from the plant justifies
task, and it is especially so where the Court has not
the inference that they may be used by such nonstrikers
clearly defined the extent to which the "economic"
for other employment.
impact of an employer's actions on the exercise of pro-
Accordingly, I would sustain the complaint herein on
tected rights by employees may properly influence the
the strength of the Board's disposition of Fraley a Schil-
"balancing" process.
ling. My further analyses and conclusions below address
It is clear, however, that the Board need not be blind
Kaiser's arguments on their merits should a reviewing
to the potential economic impact on the exercise of em-
body determine that this is a case of first impression.
ployees' rights of permitting an employer to wield cer-
Kaiser stresses that its motive was not "antiunion" or
t
weapons. Indeed, it was with a view to the likely
"hostile," citing its longstanding "amicable" bargaining
economic consequences that the Court was moved to
relationship with the Machinists. This much may be ac-
c
l
i
B
F
t
u
employers faced
knowledged: Kaiser's tool-impoundment actions were
with "whipsaw" strike tactics were permitted to lock out
not shown to have been part of any broader attempt to
u
e
a
t
c
i
t oprt
"bust" the Machinists and to remove it as a bargaining
reiresines
eplacees,
to
wouldnbe virale
agent. Cf. Fraley At Schilling, supra. Rather, Kaiser was
t h el r b u ss
n es s with replacements, they would be virtually
simply exploiting its position as a de facto possessor' of
helpless to respond to such tactics. "> Given those unique
simpy eplotin
itspostio asa d faco pssesor of
economic realities, the Court therefore found it "wholly
the tools belonging to its employees to make it more dif-
consist
reaithes legiti
tereforpose"
f
the
ficult for them to obtain employment in their trade else-
e
lnsistent with a legitimate business purpose
for the
where during the strike-and thus to make them more
cotployer to have locked out nonstra nemg employees and
tractable to Kaiser's bargaining demands.continued
its operations with replacements. Id. at 285.
Kaiser insists on this latter point, characterizing its ac-
Accordingly, the question presented here by Kaiser's
tions as merely an effort to use "economic weapons" at
attempt to prevent strikers from obtaining work else-
its disposal to aid in achieving its collective-bargaining
where is not disposed of in Kaiser's favor merely by la-
aims. And Kaiser places ultimate reliance on the admoni-
beling Kaiser's actions as the use of an "economic
tion of the Court in Brown Food Store' that "the Act
weapon," nor by establishing that Kaiser was merely at-
does not constitute the Board as an 'arbiter of the sort of
tempting to enhance its relative bargaining strength in its
economic weapons the parties can use in seeking to gain
tool-impoundment tactic, and was not trying to achieve a
acceptance of their bargaining demands."' (Id. at 283.)
total removal of the Machinists as the employees' bar-
Kaiser further correctly notes that employers have been
gaining agent. Instead, in assessing the legality of Kai-
sustained in the use of certain "economic weapons"
ser' s effo rts to preclude strikers from gaining other em-
which impinge on the exercise of statutory rights, such
ployment during the strike, I must take into account the
as the use of postimpasse lockouts (American Ship Build-
potential of that action for "creating visible and continu-
ing, supra), and even lockouts while continuing to oper-
ing obstacles to the future exercise of employee rights.""
ate the
business
with
replacements
(Brown
Food.
In doing so, I start with the observation-to me an in-
supra).Thus, Kaiser would apparently have me hold that
escapable one-that Kaiser's tool-impoundment was a
once an employer's actions against strikers may be char-
plain and visible act of discrimination directed against
acterized as the use of "economic weapons" which are
strikers-and only strikers-which would necessarily be
merely employed in furtherance of some bargaining aim,
viewed by them as punitive. Strikers could draw no
such conduct is beyond the reach of the Act's proscrip-
other conclusion from the fact that Kaiser permits em-
tions.
ployees to remove their tools, including for use in out-
I reject Kaiser's position. Neither Brown Food nor
American Ship Building took the Board out of
the busi-
" I
d .
a t 284-285, in which the Court sympathized with the "dilemma"
ness of performing the "delicate task ...
of
weighing
of an employer-member of a multiemployer bargaining group in such a
situation, noting that the whipsaw strike "enjoys an almost inescapable
the interests of employees in concerted activity against
prospect of success" unless a nonstruck employer-member may defensive-
See fn. 15, supra.ly
lock out unionized employees and continue to operate with replace-
N.LR.B. v. Brown et a., d/b/a Brown Food Store, 380 U.S. 278
ments.
(1965); see also American Ship Building Co. v. N.LR.B., 380 U.S. 300
"1 Portland Willametle Company v. N.LR.B., 534 F.2d 1331, 1334 (9th
(1965), on which Kaiser also relies.
Cir. 1976).
646
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
side work, unless they exercise their right to strike. It is
Kaiser also emphasizes on brief (p. 2) that "Kaiser did
further inescapable in my view that such discrimination
not prevent employees from removing their tools at the
necessarily discourages or tends to discourage the future
end of their last shift prior to the strike, which many
exercise of such protected rights-a consequence which
did." The potential legal significance of this information
it could be presumed that Kaiser intended, 12 even absent
eludes me. If Kaiser's analogy to the lockout in American
the candid concession of Kaiser's agent, Brundy, that
Ship Building is correct, then the presence or absence of
Kaiser specifically intended that its tool-impoundment
a strike-in-progress is irrelevant; and Kaiser would pre-
tactic would have a direct impact on strikers' choices
sumably enjoy the right to impound tools on the eve of a
whether to remain on strike. See also in this regard Kai-
strike-or even sooner; i.e., at whatever point at which a
ser's acknowledgement on brief (pp. 2-3) that:
bargaining impasse has been reached and Kaiser decides
The primary purpose of this policy is to make it dif-
to "bring its economic pressure to bear in support of its
ficult for its striking employees to find interim em-
bargaining position." Id. at 308. Accordingly, Kaiser's
ployment elsewhere during the strike, with the in-
failure to impound tools before the strike started does
tended result that said employees would be eco-
not affect the question of the legality of its admitted ac-
nomically induced to terminate their strike on terms
tions.
more favorable to Kaiser.
Kaiser argues predictably that the legality of its ac-
tions should not be determined solely by reference to the
Thus, it is evident that if employees whose trade requires
tions houl
not be d
ed solely by reference to the
them-as the machinists' trade frequently does-to fur-
economic disadvantage which those actions visit on strk-
nish their own tools as a condition of employment, then
ers And it s true, as the
ourt observed in American
surely they will be inhibited in future striking by the
Ship Building, (supra at 313):
knowledge that Kaiser will seize their tools and thus
there is nothing in the Act which gives em-
minimize their chances of securing outside employment
plo
the
rit
to insist
n the wich gives em-
.durine~
.
a~~ st.,rikeployees
the right to insist on their contract de-
during a strike.
It is properly noticeable in an administrative lawmands,
free from the sort of economic disadvantage
It is properly noticeable in an administrative law
.
f
. .
system which deals regularly with the phenomena ofwhich
requently attends bargaining disputes.
strikes and other disputes surrounding the collective-bar-
But resort to these and similar comments by the Court
gaining process that strikers normally seek outside earn-
re
t h e contet o
ehn
the
ings during a strike. Thus, it has been observed that
rendered in the context of weighing the legality of an
"Strikers certainly must support themselves during a
employer's actions taken as part of the exercise of his tra-
".trikers certainly must support themselves during a
strike and other employment is often the best, if not their
ditional prerogative to manage his own business, is sus-
only means of doing so."
3 It is therefore appropriate to
pect in the context of this case. In the first instance, as
take into account in this analysis the fact that Kaiser's
noted above, Kaiser was not performing a traditional
actions, if permitted, would virtually preclude machinists
business-management function when it told strikers that
from exercising the traditional option of seeking outside
they could not retrieve their own property from its
employment in their trade during a strike.
plant. Traditional business considerations (e.g., preven-
Moreover, I envision a number of additional troubling
tion of sabotage or theft) were admittedly subordinate to
prospects in giving Kaiser license to impair the outside
its desire to prevent strikers from working elsewhere.
employment prospects of strikers by impounding their
Secondly, as an empirical matter, an employer's effort to
tools. Thus, if Kaiser's position is correct, then it seems
interfere with a striker's ability to find interim work else-
equally open to it to use other "economic" measures to
where is not the sort of "economic disadvantage which
prevent strikers' employment elsewhere. For example,
frequently attend[s] bargaining disputes." Accordingly,
Kaiser could presumably use its economic influence in a
the Court's observations in those cases do not dictate the
community to discourage other businesses from hiring
result herein.
employees who have gone on strike against it-in short,
While attempts to draw parallels between the rights of
to engage in an attempt to "blacklist" strikers in the
strikers and those of struck employers carry with them
community. 14 Or, to the extent that it were held that
certain inherent difficulties, it must be recognized that
Kaiser may impound the tools which its strikers store in
there is a certain one-sidedness in Kaiser's position. At
its plant, nothing would then seem to prevent it from
bottom, Kaiser suggests that employers should not only
sending agents to strikers' homes, garages, or other
be privileged in continuing to operate with permanent
places where they might store tools in order to seize the
replacements during a strike,' 6 thereby maintaining their
tools and hold them hostage as a device to gain bargain-
own flow of earnings, but that they should also be privi-
ing "leverage." "
need not be determined herein, Kaiser's actions almost certainly involved
" The Radio Offcers' Union of the Commercial Telgraph Union, AFL
a tortious conversion of its employees' tools which Kaiser merely held in
[A. H. Bull Steamship Co.] v. N.LR.B., 347 U.S. 17,45 (1954); see also
a form of bailment for their mutual benefit. Kaiser would argue here-
Erie Resisor, supra at 227-228.
correctly, in my view-that its status as a civil or criminal law violator
" Connecticut Foundry Company, 247 NLRB 1514, 1518 (1980).
does not, per se, determine whether or not it violated employee rights
" An employer may not, for the purpose of punishing an employee for
under the Act. Thus, it would argue equally in the hypothetical situation
exercising his Sec. 7 rights, seek to prevent another employer from hiring
just posed that nothing in the Act prohibited it from seizing employees'
the employee. The Armstrong Rubber Company, 215 NLRB 620, fn. I
tools wherever they might be found.
(1974).
" An established right of struck employers. N.LR.B. v. Mackay Radio
" Kaiser nowhere argues that it had some right under property law to
& Telegraph Co., 304 U.S. 333, 344-346 (1938), although Kaiser did not
refuse to release the machinists' tools upon demand. Indeed, although it
choose to exercise it during the strike involved herein.
646
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
side work, unless they exercise their right to strike. It is
Kaiser also emphasizes on brief (p. 2) that "Kaiser did
further inescapable in my view that such discrimination
not prevent employees from removing their tools at the
necessarily discourages or tends to discourage the future
end of their last shift prior to the strike, which many
exercise of such protected rights-a consequence which
did." The potential legal significance of this information
it could be presumed that Kaiser intended, 12 even absent
eludes me. If Kaiser's analogy to the lockout in American
the candid concession of Kaiser's agent, Brundy, that
Ship Building is correct, then the presence or absence of
Kaiser specifically intended that its tool-impoundment
a strike-in-progress is irrelevant; and Kaiser would pre-
tactic would have a direct impact on strikers' choices
sumably enjoy the right to impound tools on the eve of a
whether to remain on strike. See also in this regard Kai-
strike-or even sooner; i.e., at whatever point at which a
ser's acknowledgement on brief (pp. 2-3) that:
bargaining impasse has been reached and Kaiser decides
The primary purpose of this policy is to make it dif-
to "bring its economic pressure to bear in support of its
ficult for its striking employees to find interim em-
bargaining position." Id. at 308. Accordingly, Kaiser's
ployment elsewhere during the strike, with the in-
failure to impound tools before the strike started does
tended result that said employees would be eco-
not affect the question of the legality of its admitted ac-
nomically induced to terminate their strike on terms
tions.
more favorable to Kaiser.
Kaiser argues predictably that the legality of its ac-
Thus, it is evident that if employees whose trade requires
t io n s sh o u ld no t b e dtermined solely by reference to the
them-as the machinists' trade frequently does-to fur-
economic disadvantage which those actions visit on strik-
nish their own tools as a condition of employment, then
er s. A n d it is t r u e, as
t h e
C o u r t
ob s er v ed
in Am"can
surely they will be inhibited in future striking by the
Ship Building, (supra at 313):
knowledge that Kaiser will seize their tools and thus
.
.
.
te
i
n
ic
v
minimize their chances of securing outside employment
poe
t h er e
r
s
to'S inn
t h e Act which gives em-
during a strikeployees
the right to insist on their contract de-
It
is properly noticeable in an administrative lawmands,
free from the sort of economic disadvantage
system which deals regularly with the phenomena of
w h l c h frequently attends bargaining disputes.
strikes and other disputes surrounding the collective-bar-
B
rst
to t
a
si
c
by t
C
gaining process that strikers normally seek outside earn-
r ed i
t h ec
e xt of wemgeng
the
l
ofran
ings during a strike. Thus, it has been observed that
rendered '
the context of weighing the legality of an
"Strikers certainly must support themselves during aemployer s actions taken as part of the exercise of his tra-
strike and other employment is often the best, if not their
dit io nal prerogative to manage his own business, is sus-
only means of doing so."'" It is therefore appropriate to
pect in
t h e context of this case. In the first instance, as
take into account in this analysis the fact that Kaiser's
n o te d
a bo v e , K ai ser
w as not performing a traditional
actions, if permitted, would virtually preclude machinists
business-management function when it told strikers that
from exercising the traditional option of seeking outside
they could not retrieve their own property from its
employment in their trade during a strike.
plant. Traditional business considerations (e.g., preven-
Moreover, I envision a number of additional troubling
tion of sabotage or theft) were admittedly subordinate to
prospects in giving Kaiser license to impair the outside
it s desire to prevent strikers from working elsewhere.
employment prospects of strikers by impounding their
Secondly, as an empirical matter, an employer's effort to
tools. Thus, if Kaiser's position is correct, then it seems
interfere with a striker's ability to find interim work else-
equally open to it to use other "economic" measures to
where is not the sort of "economic disadvantage which
prevent strikers' employment elsewhere. For example,
frequently attend[s] bargaining disputes." Accordingly,
Kaiser could presumably use its economic influence in a
the Court's observations in those cases do not dictate the
community to discourage other businesses from hiring
result herein.
employees who have gone on strike against it-in short,
While attempts to draw parallels between the rights of
to engage in an attempt to "blacklist" strikers in the
strikers and those of struck employers carry with them
community. 14 Or, to the extent that it were held that
certain inherent difficulties, it must be recognized that
Kaiser may impound the tools which its strikers store in
there is a certain one-sidedness in Kaiser's position. At
its plant, nothing would then seem to prevent it from
bottom, Kaiser suggests that employers should not only
sending agents to strikers' homes, garages, or other
be privileged in continuing to operate with permanent
places where they might store tools in order to seize the
replacements during a strike,"6 thereby maintaining their
tools and hold them hostage as a device to gain bargain-
own flow of earnings, but that they should also be privi-
ing "leverage.""Is
need not be determined herein. Kaiser's actions almost certainly involved
" The Radio Offlcers' Union of the Commercial Telgraph Union, AFL
a tortious conversion of its employees' tools which Kaiser merely held in
[A. H. Bull Steamship Co.] v. N.LR.B., 347 U.S. 17,45 (1954); see also
a form of bailment for their mutual benefit. Kaiser would argue here-
Eric Resistr, supra at 227-228.
correctly, in my view-that its status as a civil or criminal law violator
" Connecticut Foundry Company, 247 NLRB 1514, 1518 (1980).
does not, per se, determine whether or not it violated employee rights
" An employer may not, for the purpose of punishing an employee for
under the Act. Thus, it would argue equally in the hypothetical situation
exercising his Sec. 7 rights, seek to prevent another employer from hiring
just posed that nothing in the Act prohibited it from seizing employees'
the employee. The Armstrong Rubber Company, 215 NLRB 620, fn. 1
tools wherever they might be found.
(1974).
"1 An established right of struck employers. N.LR.B. v. Mackay Radio
" Kaiser nowhere argues that it had some right under property law to
A Telegraph Co., 304 U.S. 333, 344-346 (1938), although Kaiser did not
refuse to release the machinists' tools upon demand. Indeed, although it
choose to exercise it during the strike involved herein.
646
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
side work, unless they exercise their right to strike. It is
Kaiser also emphasizes on brief (p. 2) that "Kaiser did
further inescapable in my view that such discrimination
not prevent employees from removing their tools at the
necessarily discourages or tends to discourage the future
end of their last shift prior to the strike, which many
exercise of such protected rights-a consequence which
did." The potential legal significance of this information
it could be presumed that Kaiser intended, 12 even absent
eludes me. If Kaiser's analogy to the lockout in American
the candid concession of Kaiser's agent, Brundy, that
Ship Building is correct, then the presence or absence of
Kaiser specifically intended that its tool-impoundment
a strike-in-progress is irrelevant; and Kaiser would pre-
tactic would have a direct impact on strikers' choices
sumably enjoy the right to impound tools on the eve of a
whether to remain on strike. See also in this regard Kai-
strike-or even sooner; i.e., at whatever point at which a
ser's acknowledgement on brief (pp. 2-3) that:
bargaining impasse has been reached and Kaiser decides
The primary purpose of this policy is to make it dif-
to "bring its economic pressure to bear in support of its
ficult for its striking employees to find interim em-
bargaining position." Id. at 308. Accordingly, Kaiser's
ployment elsewhere during the strike, with the in-
failure to impound tools before the strike started does
tended result that said employees would be eco-
not affect the question of the legality of its admitted ac-
nomically induced to terminate their strike on terms
tions.
more favorable to Kaiser.
Kaiser argues predictably that the legality of its ac-
Thus, it is evident that if employees whose trade requires
t io n s sh o u ld no t b e de
mied solely by reference to the
them-as the machinists' trade frequently does-to fur-
economic disadvantage which those actions visit on strik-
nish their own tools as a condition of employment, then
er s. And it is t r u e, as
t h e
C o u r t
ob s er v ed
in Am"can
surely they will be inhibited in future striking by the
Ship Building, (supra at 313):
knowledge that Kaiser will seize their tools and thus
.
.
.
te
i
n
ic
v
minimize their chances of securing outside employment
poe
t h er e
r
s
to'S inn
t h e Act which gives em-
during a strikeployees
the right to insist on their contract de-
It
is properly noticeable in an administrative lawmands,
free from the sort of economic disadvantage
system which deals regularly with the phenomena of
wh l c h frequently attends bargaining disputes.
strikes and other disputes surrounding the collective-bar-
B
rst
to t
a
si
c
by t
C
gaining process that strikers normally seek outside earn-
r ed i
t h ec
e xt of
cemgeng the
l
ofran
ings during a strike. Thus, it has been observed that
rendered in the context of weighing the legality of an
"Strikers certainly must support themselves during aemployer s actions taken as part of the exercise of his tra-
strike and other employment is often the best, if not their
dit io nal prerogative to manage his own business, is sus-
only means of doing so.'"" It is therefore appropriate to
pect in the context of this case. In the first instance, as
take into account in this analysis the fact that Kaiser's
n o te d
a bo v e , K ai ser
w as not performing a traditional
actions, if permitted, would virtually preclude machinists
business-management function when it told strikers that
from exercising the traditional option of seeking outside
they could not retrieve their own property from its
employment in their trade during a strike.
plant. Traditional business considerations (e.g., preven-
Moreover, I envision a number of additional troubling
tion of sabotage or theft) were admittedly subordinate to
prospects in giving Kaiser license to impair the outside
i t s desire to prevent strikers from working elsewhere.
employment prospects of strikers by impounding their
Secondly, as an empirical matter, an employer's effort to
tools. Thus, if Kaiser's position is correct, then it seems
interfere with a striker's ability to find interim work else-
equally open to it to use other "economic" measures to
where is not the sort of "economic disadvantage which
prevent strikers' employment elsewhere. For example,
frequently attend[s] bargaining disputes." Accordingly,
Kaiser could presumably use its economic influence in a
the Court's observations in those cases do not dictate the
community to discourage other businesses from hiring
result herein.
employees who have gone on strike against it-in short,
While attempts to draw parallels between the rights of
to engage in an attempt to "blacklist" strikers in the
strikers and those of struck employers carry with them
community.' 4 Or, to the extent that it were held that
certain inherent difficulties, it must be recognized that
Kaiser may impound the tools which its strikers store in
there is a certain one-sidedness in Kaiser's position. At
its plant, nothing would then seem to prevent it from
bottom, Kaiser suggests that employers should not only
sending agents to strikers' homes, garages, or other
be privileged in continuing to operate with permanent
places where they might store tools in order to seize the
replacements during a strike,"' thereby maintaining their
tools and hold them hostage as a device to gain bargain-
own flow of earnings, but that they should also be privi-
ing "leverage.""Is
need not be determined herein. Kaiser's actions almost certainly involved
" The Radio Offlcers' Union of the Commercial Telgraph Union, AFL
a tortious conversion of its employees' tools which Kaiser merely held in
[A. H. Bull Steamship Co.] v. N.LR.B., 347 U.S. 17,45 (1954); see also
a form of bailment for their mutual benefit. Kaiser would argue here-
Eric Resistr, supra at 227-228.
correctly, in my view-that its status as a civil or criminal law violator
" Connecticut Foundry Company, 247 NLRB 1514, 1518 (1980).
does not, per se, determine whether or not it violated employee rights
" An employer may not, for the purpose of punishing an employee for
under the Act. Thus, it would argue equally in the hypothetical situation
exercising his Sec. 7 rights, seek to prevent another employer from hiring
just posed that nothing in the Act prohibited it from seizing employees'
the employee. The Armstrong Rubber Company, 215 NLRB 620, fn. 1
tools wherever they might be found.
(1974).
"1 An established right of struck employers. N.LR.B. v. Mackay Radio
" Kaiser nowhere argues that it had some right under property law to
A Telegraph Co., 304 U.S. 333, 344-346 (1938), although Kaiser did not
refuse to release the machinists' tools upon demand. Indeed, although it
choose to exercise it during the strike involved herein.
646
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
side work, unless they exercise their right to strike. It is
Kaiser also emphasizes on brief (p. 2) that "Kaiser did
further inescapable in my view that such discrimination
not prevent employees from removing their tools at the
necessarily discourages or tends to discourage the future
end of their last shift prior to the strike, which many
exercise of such protected rights-a consequence which
did." The potential legal significance of this information
it could be presumed that Kaiser intended,' 2 even absent
eludes me. If Kaiser's analogy to the lockout in American
the candid concession of Kaiser's agent, Brundy, that
Ship Building is correct, then the presence or absence of
Kaiser specifically intended that its tool-impoundment
a strike-in-progress is irrelevant; and Kaiser would pre-
tactic would have a direct impact on strikers' choices
sumably enjoy the right to impound tools on the eve of a
whether to remain on strike. See also in this regard Kai-
strike-or even sooner; i.e., at whatever point at which a
ser's acknowledgement on brief (pp. 2-3) that:
bargaining impasse has been reached and Kaiser decides
The primary purpose of this policy is to make it dif-
to "bring its economic pressure to bear in support of its
ficult for its striking employees to find interim em-
bargaining position." Id. at 308. Accordingly, Kaiser's
ployment elsewhere during the strike, with the in-
failure to impound tools before the strike started does
tended result that said employees would be eco-
not affect the question of the legality of its admitted ac-
nomically induced to terminate their strike on terms
tions.
more favorable to Kaiser.
Kaiser argues predictably that the legality of its ac-
Thus, it is evident that if employees whose trade requires
t io n s sh o u ld
no t b e dtermined solely by reference to the
them-as the machinists' trade frequently does-to fur-
economic disadvantage which those actions visit on strik-
nish their own tools as a condition of employment, then
er s. A n d it is t r u e, as
t h e
C o u r t
ob s er v ed
in Am"can
surely they will be inhibited in future striking by the
Ship Building, (supra at 313):
knowledge that Kaiser will seize their tools and thus
.
.
.
te
i
n
ic
v
minimize their chances of securing outside employment
poe
t h er e
r
s
to'S inn
t h e Act which gives em-
during a strikeployees
the right to insist on their contract de-
It
is properly noticeable in an administrative lawmands,
free from the sort of economic disadvantage
system which deals regularly with the phenomena of
wh l c h frequently attends bargaining disputes.
strikes and other disputes surrounding the collective-bar-
B
rst
to t
a
si
c
by t
C
gaining process that strikers normally seek outside earn-
r ed i
t h ec
e xt of
cemgeng the
l
ofran
ings during a strike. Thus, it has been observed that
rendered in the context of weighing the legality of an
"Strikers certainly must support themselves during aemployer s actions taken as part of the exercise of his tra-
strike and other employment is often the best, if not their
ditio n a l Prerogative to manage his own business, is sus-
only means of doing so."'" It is therefore appropriate to
pect in the context of this case. In the first instance, as
take into account in this analysis the fact that Kaiser's
n o te d
a bo v e , K ai ser
w as not performing a traditional
actions, if permitted, would virtually preclude machinists
business-management function when it told strikers that
from exercising the traditional option of seeking outside
they could not retrieve their own property from its
employment in their trade during a strike.
plant. Traditional business considerations (e.g., preven-
Moreover, I envision a number of additional troubling
tion of sabotage or theft) were admittedly subordinate to
prospects in giving Kaiser license to impair the outside
i t s desire to prevent strikers from working elsewhere.
employment prospects of strikers by impounding their
Secondly, as an empirical matter, an employer's effort to
tools. Thus, if Kaiser's position is correct, then it seems
interfere with a striker's ability to find interim work else-
equally open to it to use other "economic" measures to
where is not the sort of "economic disadvantage which
prevent strikers' employment elsewhere. For example,
frequently attend[s] bargaining disputes." Accordingly,
Kaiser could presumably use its economic influence in a
the Court's observations in those cases do not dictate the
community to discourage other businesses from hiring
result herein.
employees who have gone on strike against it-in short,
While attempts to draw parallels between the rights of
to engage in an attempt to "blacklist" strikers in the
strikers and those of struck employers carry with them
community.' 4 Or, to the extent that it were held that
certain inherent difficulties, it must be recognized that
Kaiser may impound the tools which its strikers store in
there is a certain one-sidedness in Kaiser's position. At
its plant, nothing would then seem to prevent it from
bottom, Kaiser suggests that employers should not only
sending agents to strikers' homes, garages, or other
be privileged in continuing to operate with permanent
places where they might store tools in order to seize the
replacements during a strike,"' thereby maintaining their
tools and hold them hostage as a device to gain bargain-
own flow of earnings, but that they should also be privi-
ing "leverage.""Is
need not be determined herein. Kaiser's actions almost certainly involved
" The Radio Offlcers' Union of the Commercial Telgraph Union, AFL
a tortious conversion of its employees' tools which Kaiser merely held in
[A. H. Bull Steamship Co.] v. N.LR.B., 347 U.S. 17,45 (1954); see also
a form of bailment for their mutual benefit. Kaiser would argue here-
Eric Resistr, supra at 227-228.
correctly, in my view-that its status as a civil or criminal law violator
" Connecticut Foundry Company, 247 NLRB 1514, 1518 (1980).
does not, per se, determine whether or not it violated employee rights
" An employer may not, for the purpose of punishing an employee for
under the Act. Thus, it would argue equally in the hypothetical situation
exercising his Sec. 7 rights, seek to prevent another employer from hiring
just posed that nothing in the Act prohibited it from seizing employees'
the employee. The Armstrong Rubber Company, 215 NLRB 620, fn. 1
tools wherever they might be found.
(1974).
"1 An established right of struck employers. N.LR.B. v. Mackay Radio
" Kaiser nowhere argues that it had some right under property law to
A Telegraph Co., 304 U.S. 333, 344-346 (1938), although Kaiser did not
refuse to release the machinists' tools upon demand. Indeed, although it
choose to exercise it during the strike involved herein.
KAISER STEEL CORPORATION
647
leged in taking further measures to ensure that strikers
Congress, in exhibiting "repeated solicitude" for the
not similarly be able to obtain earnings during a strike.
right to strike,"s did not thereby purport to guarantee
In reality therefore, Kaiser seeks recognition of an en-
that strikers would feel no economic pinch, or that they
tirely new arsenal of economic weaponry for use by
would always be successful in their striking aims, but it
struck employers. And, unlike the defensive lockout tac-
was at least contemplated that: "[a] legitimately-em-
tics legitimized by the Court in Brown Food and Ameri-
ployed strike . . . in great measure implements and sup-
can Ship Building as measures which were appropriately
ports
the
principles
of the
collective
bargaining
tailored to unique business needs,
Kaiser's actions were
system." 1
not developed in response to any extraordinary challenge
The use of "weapons" calculated to render it difficult
by the striking union. Neither did its impoundment of
or impossible for strikers to obtain earnings elsewhere
tools merely involve decisions about how, and under
during a strike would render most striking economically
what circumstances, it would "manage its enterprise."
futile from the employees' standpoint, and would thus
American Ship Building, supra at 311. Instead, Kaiser
eliminate the exercise of a right deemed important by
sought to reach beyond internal management measures to
Congress in "implement[ing] and support[ing]" the goals
measures designed to harm employees' options in finding
which Congress had in mind in establishing a national
other work in their trade during the strike.
system of collective bargaining. Ibid
It is not easy to discern precisely what "legitimate in-
Accordingly, I must conclude that Kaiser's actions
terest" of Kaiser's in seizing strikers' tools it is that
were inherently destructive of important rights guaran-
should be "balanced" against the demonstrable harm to
teed to employees by Sections 7 and 13 of the Act. I
employees' traditional striking rights which were occa-
must further conclude that Kaiser's claim of business jus-
sioned by Kaiser's actions. Kaiser would presumably
tification-the desire to achieve leverage in collective
claim that it is sufficient to show that Kaiser was merely
bargaining-does not outweigh the considerations of
trying to enhance its bargaining position by its actions.
public policy which are reflected, inter alia, in the "spe-
This "business interest" is, however, of an entirely differ-
cial deference" Congress gave to the right to strike in-
ent character than the unique purposes which were
cluding by the "positive command of Section 13 that the
served by the respective employers' lockout actions in
right to strike is to be given a generous interpretation
Brown Food and American Ship Building. One need not
within the scope of the . .. Act."20
deny the legitimacy of such an interest as Kaiser rests on
CONCLUSIONS OF LAW
herein, but it is clearly one which is common to everyCONCLUSIONS
OF LAW
struck employer; and it is difficult to assume that the
1. Kaiser is an employer engaged in commerce within
Court intended in the cited cases to give blanket approv-
the meaning of Section 2(6) and (7) of the Act.
al to any and all "economic"
tactics by employers
2. The Machinists is a labor organization within the
against strikers, without regard to their long-range poten-
meaning of Section 2(5) of the Act.
tial for discouraging the use of the statutory right to
3. Employees represented by the Machinists were en-
strike,
gaged in concerted striking activity protected by Sec-
In the final analysis, if the balancing function of the
tions 7 and 13 of the Act when, between July 11 and
Board is to have substance, it must include an assessment
July 24, 1980, they honored a primary economic strike
of the economic impact on employees-and hence on
and picketing and refrained from entering Kaiser's Napa
their exercise of protected rights-of "weapons" chosen
plant to perform their normal work there.
by employers to achieve for themselves the greatest pos-
4. By refusing to permit such striking employees to
sible bargaining leverage. If Kaiser may take advantage
remove their personally owned tools from its Napa plant
of the fortuities of its tool-storage arrangement to pre-
in order to impair their ability to obtain other employ-
vent the removal of those tools from its plant for use by
ment during the strike and under circumstances where
strikers in interim employment elsewhere, there is no ob-
Kaiser normally permits its nonstriking employees to
vious reason why Kaiser could not with equal claim of
remove their tools for their own purposes, Respondent
legitimacy under the Act take other measures to prevent
has interfered with, restrained, and coerced employees in
strikers from working elsewhere. And, if an employer
the exercise of rights protected by Sections 7 and 13 of
may impair or frustrate entirely strikers' abilities to find
the Act, and has discriminated against employees with
other employment while the employer remains free to
respect to their terms and conditions of employment in
operate his business through the use of permanent re-
order to discourage membership in, or activities on
placements, then the exercise of the right to strike will
behalf of, labor organizations, and thereby has engaged
be hollow indeed. For the obtaining of other employ-
in and is engaging in unfair labor practices within the
ment by strikers has been the primary means by which
meaning of Section 8(aXl) and (3) of the Act.
they survive a strike of any substantial duration; and they
will not exercise the right to strike if it means that they
THE REMEDY
must bankrupt themselves to do so.
Having found that Kaiser violated Section 8(aXl) and
'" Maintenance of the integrity and bargaining effectiveness of a mul-
(3) of the Act by its tool-impoundment tactic against
tiemployer group faced with whipsaw strikes (Brown); control over the
timing of a business shutdown after bargaining impasse and where em-
"Erie Resistor. supra at 233.
ployer reasonably apprehended that the union would defer striking until
"Id. 233-334, citing legislative history.
time most damaging to employer (American Ship Building).
oId. at 234-335.
KAISER STEEL CORPORATION
647
leged in taking further measures to ensure that strikers
Congress, in exhibiting "repeated solicitude" for the
not similarly be able to obtain earnings during a strike.
right to strike," did not thereby purport to guarantee
In reality therefore, Kaiser seeks recognition of an en-
that strikers would feel no economic pinch, or that they
tirely new arsenal of economic weaponry for use by
would always be successful in their striking aims, but it
struck employers. And, unlike the defensive lockout tac-
was at least contemplated that: "[a]
legitimately-em-
tics legitimized by the Court in Brown Food and Ameri-
ployed strike ...
in great measure implements and sup-
can Ship Building as measures which were appropriately
ports
the
principles
of the
collective
bargaining
tailored to unique business needs," Kaiser's actions were
system." 19
not developed in response to any extraordinary challenge
The use of "weapons" calculated to render it difficult
by the striking union. Neither did its impoundment of
or impossible for strikers to obtain earnings elsewhere
tools merely involve decisions about how, and under
during a strike would render most striking economically
what circumstances, it would "manage its enterprise."
futile from the employees' standpoint, and would thus
American Ship Building, supra at 311. Instead, Kaiser
eliminate the exercise of a right deemed important by
sought to reach beyond internal management measures to
Congress in "implement~ing] and support~ing]" the goals
measures designed to harm employees' options in finding
which Congress had in mind in establishing a national
other work in their trade during the strike.
system of collective bargaining. Ibid
It is not easy to discern precisely what "legitimate in-
Accordingly, I must conclude that Kaiser's actions
terest" of Kaiser's in seizing strikers' tools it is that
were inherently destructive of important rights guaran-
should be "balanced" against the demonstrable harm to
teed to employees by Sections 7 and 13 of the Act. I
employees' traditional striking rights which were occa-
must further conclude that Kaiser's claim of business jus-
sioned by Kaiser's actions. Kaiser would presumably
tification-the desire to achieve leverage in collective
claim that it is sufficient to show that Kaiser was merely
bargaining-does not outweigh the considerations of
trying to enhance its bargaining position by its actions.
public policy which are reflected, inter alia, in the "spe-
This "business interest" is, however, of an entirely differ-
cial deference" Congress gave to the right to strike in-
ent character than the unique purposes which were
eluding by the "positive command of Section 13 that the
served by the respective employers' lockout actions in
right to strike is to be given a generous interpretation
Brown Food and American Ship Building. One need not
within the scope of the . . . Act." 20
deny the legitimacy of such an interest as Kaiser rests on
herein, but it is clearly one which is common to everyCONCLUSIONS
OF LAW
struck employer; and it is difficult to assume that the
1. Kaiser is an employer engaged in commerce within
Court intended in the cited cases to give blanket approv-
the meaning of Section 2(6) and (7) of the Act.
al to any and all "economic"
tactics by employers
2. The Machinists is a labor organization within the
against strikers, without regard to their long-range poten-
meaning of Section 2(5) of the Act.
tial for discouraging the use of the statutory right to
3. Employees represented by the Machinists were en-
st rike.
gaged in concerted striking activity protected by Sec-
In the final analysis, if the balancing function of the
tions 7 and 13 of the Act when, between July 11 and
Board is to have substance, it must include an assessment
July 24, 1980, they honored a primary economic strike
of the economic impact on employees-and hence on
and picketing and refrained from entering Kaiser's Napa
their exercise of protected rights-of "weapons" chosen
plant to perform their normal work there.
by employers to achieve for themselves the greatest pos-
4. By refusing to permit such striking employees to
sible bargaining leverage. If Kaiser may take advantage
remove their personally owned tools from its Napa plant
of the fortuities of its tool-storage arrangement to pre-
in order to impair their ability to obtain other employ-
vent the removal of those tools from its plant for use by
ment during the strike and under circumstances where
strikers in interim employment elsewhere, there is no ob-
Kaiser normally permits its nonstriking employees to
vious reason why Kaiser could not with equal claim of
remove their tools for their own purposes, Respondent
legitimacy under the Act take other measures to prevent
has interfered with, restrained, and coerced employees in
strikers from working elsewhere. And, if an employer
the exercise of rights protected by Sections 7 and 13 of
may impair or frustrate entirely strikers' abilities to find
the Act, and has discriminated against employees with
other employment while the employer remains free to
respect to their terms and conditions of employment in
operate his business through the use of permanent re-
order to discourage membership in, or activities on
placements, then the exercise of the right to strike will
behalf of, labor organizations, and thereby has engaged
be hollow indeed. For the obtaining of other employ-
in and is engaging in unfair labor practices within the
ment by strikers has been the primary means by which
meaning of Section 8(aXI) and (3) of the Act.
they survive a strike of any substantial duration; and they
will not exercise the right to strike if it means that they
THE REMEDY
must bankrupt themselves to do so..
,
*
*1
0
o/
i
Having found that Kaiser violated Section 8(aXI) and
" Maintenance of the integrity and bargaining effectiveness of a mul-
(3)
o f
t h e
A
c t
b y
i t s
tool-impoundment tactic against
tiemployer group faced with whipsaw strikes (Brown); control over the
timing of a business shutdown after bargaining impasse and where em-
"Erie Resistor, supra at 233.
ployer reasonably apprehended that the union would defer striking until
"Id.
233-334, citing legislative history.
time most damaging to employer (American Ship Building).
"Id.
at 234-335.
KAISER STEEL CORPORATION
647
leged in taking further measures to ensure that strikers
Congress, in exhibiting "repeated solicitude" for the
not similarly be able to obtain earnings during a strike.
right to strike," did not thereby purport to guarantee
In reality therefore, Kaiser seeks recognition of an en-
that strikers would feel no economic pinch, or that they
tirely new arsenal of economic weaponry for use by
would always be successful in their striking aims, but it
struck employers. And, unlike the defensive lockout tac-
was at least contemplated that: "[a]
legitimately-em-
tics legitimized by the Court in Brown Food and Ameri-
ployed strike ...
in great measure implements and sup-
can Ship Building as measures which were appropriately
ports
the
principles
of the
collective
bargaining
tailored to unique business needs," Kaiser's actions were
system."' 9
not developed in response to any extraordinary challenge
The use of "weapons" calculated to render it difficult
by the striking union. Neither did its impoundment of
or impossible for strikers to obtain earnings elsewhere
tools merely involve decisions about how, and under
during a strike would render most striking economically
what circumstances, it would "manage its enterprise."
futile from the employees' standpoint, and would thus
American Ship Building, supra at 311. Instead, Kaiser
eliminate the exercise of a right deemed important by
sought to reach beyond internal management measures to
Congress in "implement~ing] and support~ing]" the goals
measures designed to harm employees' options in finding
which Congress had in mind in establishing a national
other work in their trade during the strike.
system of collective bargaining. Ibid
It is not easy to discern precisely what "legitimate in-
Accordingly, I must conclude that Kaiser's actions
terest" of Kaiser's in seizing strikers' tools it is that
were inherently destructive of important rights guaran-
should be "balanced" against the demonstrable harm to
teed to employees by Sections 7 and 13 of the Act. I
employees' traditional striking rights which were occa-
must further conclude that Kaiser's claim of business jus-
sioned by Kaiser's actions. Kaiser would presumably
tification-the desire to achieve leverage in collective
claim that it is sufficient to show that Kaiser was merely
bargaining-does not outweigh the considerations of
trying to enhance its bargaining position by its actions.
public policy which are reflected, inter alia, in the "spe-
This "business interest" is, however, of an entirely differ-
cial deference" Congress gave to the right to strike in-
ent character than the unique purposes which were
eluding by the "positive command of Section 13 that the
served by the respective employers' lockout actions in
right to strike is to be given a generous interpretation
Brown Food and American Ship Building. One need not
within the scope of the . . . Act." 20
deny the legitimacy of such an interest as Kaiser rests on
herein, but it is clearly one which is common to everyCONCLUSIONS
OF LAW
struck employer; and it is difficult to assume that the
1. Kaiser is an employer engaged in commerce within
Court intended in the cited cases to give blanket approv-
the meaning of Section 2(6) and (7) of the Act.
al to any and all "economic"
tactics by employers
2. The Machinists is a labor organization within the
against strikers, without regard to their long-range poten-
meaning of Section 2(5) of the Act.
tial for discouraging the use of the statutory right to
3. Employees represented by the Machinists were en-
st rike.
gaged in concerted striking activity protected by Sec-
In the final analysis, if the balancing function of the
tions 7 and 13 of the Act when, between July 11 and
Board is to have substance, it must include an assessment
July 24, 1980, they honored a primary economic strike
of the economic impact on employees-and hence on
and picketing and refrained from entering Kaiser's Napa
their exercise of protected rights-of "weapons" chosen
plant to perform their normal work there.
by employers to achieve for themselves the greatest pos-
4. By refusing to permit such striking employees to
sible bargaining leverage. If Kaiser may take advantage
remove their personally owned tools from its Napa plant
of the fortuities of its tool-storage arrangement to pre-
in order to impair their ability to obtain other employ-
vent the removal of those tools from its plant for use by
ment during the strike and under circumstances where
strikers in interim employment elsewhere, there is no ob-
Kaiser normally permits its nonstriking employees to
vious reason why Kaiser could not with equal claim of
remove their tools for their own purposes, Respondent
legitimacy under the Act take other measures to prevent
has interfered with, restrained, and coerced employees in
strikers from working elsewhere. And, if an employer
the exercise of rights protected by Sections 7 and 13 of
may impair or frustrate entirely strikers' abilities to find
the Act, and has discriminated against employees with
other employment while the employer remains free to
respect to their terms and conditions of employment in
operate his business through the use of permanent re-
order to discourage membership in, or activities on
placements, then the exercise of the right to strike will
behalf of, labor organizations, and thereby has engaged
be hollow indeed. For the obtaining of other employ-
in and is engaging in unfair labor practices within the
ment by strikers has been the primary means by which
meaning of Section 8(aXI) and (3) of the Act.
they survive a strike of any substantial duration; and they
will not exercise the right to strike if it means that they
THE REMEDY
must bankrupt themselves to do so..
,
*
*1
0
o/
i
Having found that Kaiser violated Section 8(aXI) and
" Maintenance of the integrity and bargaining effectiveness of a mul-
(3)
o f
t h e
A
c t
b y
i t s
tool-impoundment tactic against
tiemployer group faced with whipsaw strikes (Brown); control over the
timing of a business shutdown after bargaining impasse and where em-
"Erie Resistor, supra at 233.
ployer reasonably apprehended that the union would defer striking until
"Id.
233-334, citing legislative history.
time most damaging to employer (American Ship Building).
"Id.
at 234-335.
KAISER STEEL CORPORATION
647
leged in taking further measures to ensure that strikers
Congress, in exhibiting "repeated solicitude" for the
not similarly be able to obtain earnings during a strike.
right to strike," did not thereby purport to guarantee
In reality therefore, Kaiser seeks recognition of an en-
that strikers would feel no economic pinch, or that they
tirely new arsenal of economic weaponry for use by
would always be successful in their striking aims, but it
struck employers. And, unlike the defensive lockout tac-
was at least contemplated that: "[a]
legitimately-em-
tics legitimized by the Court in Brown Food and Ameri-
ployed strike ...
in great measure implements and sup-
can Ship Building as measures which were appropriately
ports
the
principles
of the
collective
bargaining
tailored to unique business needs," Kaiser's actions were
system." 19
not developed in response to any extraordinary challenge
The use of "weapons" calculated to render it difficult
by the striking union. Neither did its impoundment of
or impossible for strikers to obtain earnings elsewhere
tools merely involve decisions about how, and under
during a strike would render most striking economically
what circumstances, it would "manage its enterprise."
futile from the employees' standpoint, and would thus
American Ship Building, supra at 311. Instead, Kaiser
eliminate the exercise of a right deemed important by
sought to reach beyond internal management measures to
Congress in "implement~ing] and support~ing]" the goals
measures designed to harm employees' options in finding
which Congress had in mind in establishing a national
other work in their trade during the strike.
system of collective bargaining. Ibid
It is not easy to discern precisely what "legitimate in-
Accordingly, I must conclude that Kaiser's actions
terest" of Kaiser's in seizing strikers' tools it is that
were inherently destructive of important rights guaran-
should be "balanced" against the demonstrable harm to
teed to employees by Sections 7 and 13 of the Act. I
employees' traditional striking rights which were occa-
must further conclude that Kaiser's claim of business jus-
sioned by Kaiser's actions. Kaiser would presumably
tification-the desire to achieve leverage in collective
claim that it is sufficient to show that Kaiser was merely
bargaining-does not outweigh the considerations of
trying to enhance its bargaining position by its actions.
public policy which are reflected, inter alia, in the "spe-
This "business interest" is, however, of an entirely differ-
cial deference" Congress gave to the right to strike in-
ent character than the unique purposes which were
eluding by the "positive command of Section 13 that the
served by the respective employers' lockout actions in
right to strike is to be given a generous interpretation
Brown Food and American Ship Building. One need not
within the scope of the . . . Act." 20
deny the legitimacy of such an interest as Kaiser rests on
herein, but it is clearly one which is common to everyCONCLUSIONS
OF LAW
struck employer; and it is difficult to assume that the
1. Kaiser is an employer engaged in commerce within
Court intended in the cited cases to give blanket approv-
the meaning of Section 2(6) and (7) of the Act.
al to any and all "economic"
tactics by employers
2. The Machinists is a labor organization within the
against strikers, without regard to their long-range poten-
meaning of Section 2(5) of the Act.
tial for discouraging the use of the statutory right to
3. Employees represented by the Machinists were en-
st rike.
gaged in concerted striking activity protected by Sec-
In the final analysis, if the balancing function of the
tions 7 and 13 of the Act when, between July 11 and
Board is to have substance, it must include an assessment
July 24, 1980, they honored a primary economic strike
of the economic impact on employees-and hence on
and picketing and refrained from entering Kaiser's Napa
their exercise of protected rights-of "weapons" chosen
plant to perform their normal work there.
by employers to achieve for themselves the greatest pos-
4. By refusing to permit such striking employees to
sible bargaining leverage. If Kaiser may take advantage
remove their personally owned tools from its Napa plant
of the fortuities of its tool-storage arrangement to pre-
in order to impair their ability to obtain other employ-
vent the removal of those tools from its plant for use by
ment during the strike and under circumstances where
strikers in interim employment elsewhere, there is no ob-
Kaiser normally permits its nonstriking employees to
vious reason why Kaiser could not with equal claim of
remove their tools for their own purposes, Respondent
legitimacy under the Act take other measures to prevent
has interfered with, restrained, and coerced employees in
strikers from working elsewhere. And, if an employer
the exercise of rights protected by Sections 7 and 13 of
may impair or frustrate entirely strikers' abilities to find
the Act, and has discriminated against employees with
other employment while the employer remains free to
respect to their terms and conditions of employment in
operate his business through the use of permanent re-
order to discourage membership in, or activities on
placements, then the exercise of the right to strike will
behalf of, labor organizations, and thereby has engaged
be hollow indeed. For the obtaining of other employ-
in and is engaging in unfair labor practices within the
ment by strikers has been the primary means by which
meaning of Section 8(aXI) and (3) of the Act.
they survive a strike of any substantial duration; and they
will not exercise the right to strike if it means that they
THE REMEDY
must bankrupt themselves to do so..
,
*
*1
0
o/
i
Having found that Kaiser violated Section 8(aXI) and
" Maintenance of the integrity and bargaining effectiveness of a mul-
(3)
o f
t h e
A
c t
b y
i t s
tool-impoundment tactic against
tiemployer group faced with whipsaw strikes (Brown); control over the
timing of a business shutdown after bargaining impasse and where em-
"Erie Resistor, supra at 233.
ployer reasonably apprehended that the union would defer striking until
"Id.
233-334, citing legislative history.
time most damaging to employer (American Ship Building).
"Id.
at 234-335.
648
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikers, I shall recommend that Kaiser be ordered to
Upon the foregoing findings of fact, conclusions of
cease and desist from those, or like or related, actions;
law, and upon the entire record herein, I issue the fol-
and that it take certain remedial action, including the
lowing recommended:
posting of a remedial notice to its employees at its Napa
plant.
ORDER2 4
There is a question whcthcr Kaiser should also be sub-
T
K
r S
l C
jected to a "make whole" order. The proof at the hear-
The Rspondent, Kaiser Steel Corporation, Napa,
ing revealed that employees Martin and Boyles were
California, its officers, agents, successors, and assigns,
prohibited from removing their tools, but Martin further
shall:
testified that he was able to locate another toolset to use
1. Cease and desist from:
on the interim job which he had secured. Boyles states
(a) Penalizing employees who are engaged in a lawful
that he made two unsuccessful efforts to find interim
economic strike by discriminatorily refusing to permit
work, 21 but then gave up, "knowing that I couldn't get a
them to remove their tools from its plant in order to pre-
job because I couldn't get my tools." The General Coun-
vent them from obtaining interim work elsewhere.
sel's brief is silent as to the appropriate remedy for the
(b) In any like or related manner interfering with, re-
violation which he alleged. Fraley & Schilling does not
straining, or coercing employees in the exercise of rights
provide clear guidance on this question.22
guaranteed in Sections 7 and 13 of the Act, or discrimi-
It strikes me as entirely appropriate, in the present cir-
nating against them with respect to their terms and con-
cumstances, however, that Kaiser be ordered to make
ditions of employment in order to discourage member-
whole any strikers who were impaired in their ability to
ship in or activities on behalf of a labor organization.
obtain earnings during the strike by Kaiser's refusal to let
2. Take the following affirmative action necessary to
them remove their tools from the plant. Neither does it
effectuate the purposes of the Act:
appear to be fatal to the propriety of such a make-whole
(a) Make whole with interest any employees who suf-
order that no specific employee was shown at the unfair
fered losses of earnings during the period July 11-24
labor practice stage of these proceedings to have been
1980, because they were prevented, in furtherance of
denied some available job because of Kaiser's unlawful
Kaiser's unlawful tool-impoundment policy, from remov-
practices, especially where it would have been "futile"
at interim jobs
for strikers to have attempted to find such work when
(
reere
n,
on re
et,
make
Kaiser was wrongfully impounding their tools. See, e.g..
(b) Preserve and, upon request make available to the
Kaiser was wrongfully impounding their tools. See, e.g.,
Board or its agents, all records which would aid in estab-
Pipeline Local Union No. 38, affiliated with the Laborers'
B
o
ts
re
rd s
c
w o u l d a
e
International Union of North America, AFL-CIO (Han-
lishing the identities of striking employees in the period
cock-Northwest, J. V.), 247 NLRB 1250, 1251 (1980), and
July 11-24, 1980, and any such employees who attempt-
authorities cited. The complaint attacked Kaiser's general
ed unsuccessfully to remove their tools from Kaiser's
prohibition against removal of tools by strikers, and
Napa, California, plant.
Kaiser admits that it was acting pursuant to a general
(c) Post at its Napa, California, plant copies of the at-
policy and not merely withholding tools from particular
tached notice marked "Appendix." 25 Copies of the
individuals. Under those circumstances, I would not pre-
notice, on forms duly provided by the Regional Director
elude the General Counsel from showing at the compli-
for Region 20, after being duly signed by Kaiser's au-
ance stage, if the facts may so reveal, that strikers, in-
thorized representative, shall be posted immediately in
eluding Boyles and others, were injured financially by
conspicuous places, including in all places where notices
Kaiser's refusal to release their tools. I have therefore
to employees are customarily posted, and shall remain
provided in my recommended Order that Kaiser make
posted for 60 consecutive days thereafter. Kaiser shall
any such employees whole, with interest, in accordance
take reasonable steps to ensure that such notices are not
with established Board policies for the computation of
altered, defaced, nor covered by any other material.
backpay.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
" Boyles' lack of success in the two job-search contacts he mentioned
steps Respondent has taken to comply with it.
was because those firms had no openings-not because he had no tools.
2" In that case, the administrative law judge did not clearly explicate
why he found it appropriate that employees Clark and Woods be made
2" In the event no exceptions are filed as provided by Sec. 102.46 of
whole for losses sustained in connection with the discriminatory reposses-
the Rules and Regulations of the National Labor Relations Board, the
sions, but not for periods while they were on strike (211 NLRB at 444).
findings, conclusions, and recommended Order herein shall, as provided
It may be that the Board, in adopting this portion of the administrative
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
law judge's remedial recommendations-believed that the employer's
become its findings, conclusions, and Order, and all objections thereto
"exclusive lease-back" rights would not have permitted striking owner-
shall be deemed waived for all purposes.
operators to use the trucks to gain independent earnings.
2 In the event that this Order is enforced by a Judgment of a United
" F W Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing i
States Court of Appeals, the words in the notice reading "Posted by
Heating Co., 138 NLRB 716 (1962); and Florida Steel Corporation, 231
Order of the National Labor Relations Board" shall read "Posted Pursu-
NLRB 657 (1977). See also Olympia Medical Corporation, 250 NLRB 146
ant to a Judgment of the United States Court of Appeals Enforcing an
(1980).
Order of the National Labor Relations Board."
648
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikers, I shall recommend that Kaiser be ordered to
Upon the foregoing findings of fact, conclusions of
cease and desist from those, or like or related, actions;
law, and upon the entire record herein, I issue the fol-
and that it take certain remedial action, including the
lowing recommended:
posting of a remedial notice to its employees at its Napa
plant.
ORDER 24
There is a question whether Kaiser should also be sub-
Th
, K s
S
C
Naa
jected to a "make whole" order. The proof at the hear-
T h e
C
n
spondent, Kaiser Steel Corporation, Napa,
ing revealed that employees Martin and Boyles wereCalifornia, its officers, agents, successors, and assigns,
prohibited from removing their tools, but Martin further
shall:
testified that he was able to locate another toolset to use
1. Cease and desist from:
on the interim job which he had secured. Boyles states
(a) Penalizing employees who are engaged in a lawful
that he made two unsuccessful efforts to find interim
economic strike by discriminatorily refusing to permit
work, 21 but then gave up, "knowing that I couldn't get a
them to remove their tools from its plant in order to pre-
job because I couldn't get my tools." The General Coun-
vent them from obtaining interim work elsewhere.
sel's brief is silent as to the appropriate remedy for the
(b) In any like or related manner interfering with, re-
violation which he alleged. Fraley & Schilling does not
straining, or coercing employees in the exercise of rights
provide clear guidance on this question. 2 2
guaranteed in Sections 7 and 13 of the Act, or discrimi-
It strikes me as entirely appropriate, in the present cir-
nating against them with respect to their terms and con-
cumstances, however, that Kaiser be ordered to make
ditions of employment in order to discourage member-
whole any strikers who were impaired in their ability to
ship in or activities on behalf of a labor organization.
obtain earnings during the strike by Kaiser's refusal to let
2. Take the following affirmative action necessary to
them remove their tools from the plant. Neither does it
effectuate the purposes of the Act:
appear to be fatal to the propriety of such a make-whole
(a) Make whole with interest any employees who suf-
order that no specific employee was shown at the unfair
fered losses of earnings during the period July 11-24.
labor practice stage of these proceedings to have been
1980, because they were prevented, in furtherance of
denied some available job because of Kaiser's unlawful
RKiser's unlawful tool-impoundment policy, from remov-
practices, especially where it would have been "futile"
i
t
t
t
at interim jobs
for strikers to have attempted to find such work when
„
,
,m e
a
l
o
Kaiser was wrongfully impounding their tools. See, e.g.,
(b) Preserve and, upon requestw
make available to the
Pipeline Local Union No. 38. affiliated with the Laborers'
lB o a rd o r l t sidentis a of te c kid s w hml o wyees
aid in estab-
International Union of North America, AFL-CIO (Han-
lis hin g t he
ld e n h u e s of siking employees in the period
cock-Northwest, J. V.), 247 NLRB 1250, 1251 (1980), and
J u l y 1 1- 2 4 , 1 9 8 0 , a n d any suc h employees who attempt-
authorities cited. The complaint attacked Kaiser's general
e d
unsuccessfully to remove their tools from Kaiser's
prohibition against removal of tools by strikers, and
Napa, California, plant.
Kaiser admits that it was acting pursuant to a general
(c) Po st
a t
it s Napa, California, plant copies of the at-
policy and not merely withholding tools from particular
tached notice marked "Appendix." 25
Copies of the
individuals. Under those circumstances, I would not pre-
notice, on forms duly provided by the Regional Director
elude the General Counsel from showing at the compli-
for Region 20, after being duly signed by Kaiser's au-
ance stage, if the facts may so reveal, that strikers, in-
thorized representative, shall be posted immediately in
eluding Boyles and others, were injured financially by
conspicuous places, including in all places where notices
Kaiser's refusal to release their tools. I have therefore
to employees are customarily posted, and shall remain
provided in my recommended Order that Kaiser make
posted for 60 consecutive days thereafter. Kaiser shall
any such employees whole, with interest, in accordance
take reasonable steps to ensure that such notices are not
with established Board policies for the computation of
altered, defaced, nor covered by any other material.
backpay."2(d)
Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
" Boyles' lack of success in the two job-search contacts he mentioned
steps Respondent has taken to comply with it.
was because those firms had no openings-not because he had no tools.
"1 In that case, the administrative law judge did not clearly explicate
why he found it appropriate that employees Clark and Woods be made
21 In the event no exceptions are filed as provided by Sec. 102.46 of
whole for losses sustained in connection with the discriminatory reposses-
the Rules and Regulations of the National Labor Relations Board, the
sions, but not for periods while they were on strike (211 NLRB at 444).
findings, conclusions, and recommended Order herein shall, as provided
It may be that the Board, in adopting this portion of the administrative
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
law judge's remedial recommendations-believed that the employer's
become its findings, conclusions, and Order, and all objections thereto
"exclusive lease-back" rights would not have permitted striking owner-
shall be deemed waived for all purposes.
operators to use the trucks to gain independent earnings.
I In the event that this Order is enforced by a Judgment of a United
" F W. Woolmrth Company, 90 NLRB 289 (1950); Isis Plumbing d
States Court of Appeals, the words in the notice reading "Posted by
Heating Co.. 138 NLRB 716 (1962); and Florida Steel Corporation, 231
Order of the National Labor Relations Board" shall read "Posted Pursu-
NLRB 657 (1977). See also Olympia Medical Corporation, 250 NLRB 146
ant to a Judgment of the United States Court of Appeals Enforcing an
(1980).
Order of the National Labor Relations Board."
648
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikers, I shall recommend that Kaiser be ordered to
Upon the foregoing findings of fact, conclusions of
cease and desist from those, or like or related, actions;
law, and upon the entire record herein, I issue the fol-
and that it take certain remedial action, including the
lowing recommended:
posting of a remedial notice to its employees at its Napa
plant.
ORDER 24
There is a question whether Kaiser should also be sub-
Th
, K s
S
C
Naa
jected to a "make whole" order. The proof at the hear-
T h e
C
n
spondent, Kaiser Steel Corporation, Napa,
ing revealed that employees Martin and Boyles wereCalifornia, its officers, agents, successors, and assigns,
prohibited from removing their tools, but Martin further
shall:
testified that he was able to locate another toolset to use
1. Cease and desist from:
on the interim job which he had secured. Boyles states
(a) Penalizing employees who are engaged in a lawful
that he made two unsuccessful efforts to find interim
economic strike by discriminatorily refusing to permit
work, 21 but then gave up, "knowing that I couldn't get a
them to remove their tools from its plant in order to pre-
job because I couldn't get my tools." The General Coun-
vent them from obtaining interim work elsewhere.
sel's brief is silent as to the appropriate remedy for the
(b) In any like or related manner interfering with, re-
violation which he alleged. Fraley & Schilling does not
straining, or coercing employees in the exercise of rights
provide clear guidance on this question. 2 2
guaranteed in Sections 7 and 13 of the Act, or discrimi-
It strikes me as entirely appropriate, in the present cir-
nating against them with respect to their terms and con-
cumstances, however, that Kaiser be ordered to make
ditions of employment in order to discourage member-
whole any strikers who were impaired in their ability to
ship in or activities on behalf of a labor organization.
obtain earnings during the strike by Kaiser's refusal to let
2. Take the following affirmative action necessary to
them remove their tools from the plant. Neither does it
effectuate the purposes of the Act:
appear to be fatal to the propriety of such a make-whole
(a) Make whole with interest any employees who suf-
order that no specific employee was shown at the unfair
fered losses of earnings during the period July 11-24.
labor practice stage of these proceedings to have been
1980, because they were prevented, in furtherance of
denied some available job because of Kaiser's unlawful
RKiser's unlawful tool-impoundment policy, from remov-
practices, especially where it would have been "futile"
i
t
t
t
at interim jobs
for strikers to have attempted to find such work when
„
,
,m e
a
l
o
Kaiser was wrongfully impounding their tools. See, e.g.,
(b) Preserve and, upon requestw
make available to the
Pipeline Local Union No. 38. affiliated with the Laborers'
lB o a rd o r l t sidentis a of te c kid s w hemp loeed aid in estab-
International Union of North America, AFL-CIO (Han-
lis
t he
ld e n h u e s of siking employees in the period
cock-Northwest, J. V.), 247 NLRB 1250, 1251 (1980), and
J u l y 1 1- 2 4 , 1 9 8 0 , a n d any such employees who attempt-
authorities cited. The complaint attacked Kaiser's general
e d
unsuccessfully to remove their tools from Kaiser's
prohibition against removal of tools by strikers, and
Napa, California, plant.
Kaiser admits that it was acting pursuant to a general
(c) Po st
a t
it s Napa, California, plant copies of the at-
policy and not merely withholding tools from particular
tached notice marked "Appendix." 25
Copies of the
individuals. Under those circumstances, I would not pre-
notice, on forms duly provided by the Regional Director
elude the General Counsel from showing at the compli-
for Region 20, after being duly signed by Kaiser's au-
ance stage, if the facts may so reveal, that strikers, in-
thorized representative, shall be posted immediately in
eluding Boyles and others, were injured financially by
conspicuous places, including in all places where notices
Kaiser's refusal to release their tools. I have therefore
to employees are customarily posted, and shall remain
provided in my recommended Order that Kaiser make
posted for 60 consecutive days thereafter. Kaiser shall
any such employees whole, with interest, in accordance
take reasonable steps to ensure that such notices are not
with established Board policies for the computation of
altered, defaced, nor covered by any other material.
backpay."2(d)
Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
" Boyles' lack of success in the two job-search contacts he mentioned
steps Respondent has taken to comply with it.
was because those firms had no openings-not because he had no tools.
"1 In that case, the administrative law judge did not clearly explicate
why he found it appropriate that employees Clark and Woods be made
21 In the event no exceptions are filed as provided by Sec. 102.46 of
whole for losses sustained in connection with the discriminatory reposses-
the Rules and Regulations of the National Labor Relations Board, the
sions, but not for periods while they were on strike (211 NLRB at 444).
findings, conclusions, and recommended Order herein shall, as provided
It may be that the Board, in adopting this portion of the administrative
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
law judge's remedial recommendations-believed that the employer's
become its findings, conclusions, and Order, and all objections thereto
"exclusive lease-back" rights would not have permitted striking owner-
shall be deemed waived for all purposes.
operators to use the trucks to gain independent earnings.
I In the event that this Order is enforced by a Judgment of a United
" F W. Woolmrth Company, 90 NLRB 289 (1950); Isis Plumbing d
States Court of Appeals, the words in the notice reading "Posted by
Heating Co.. 138 NLRB 716 (1962); and Florida Steel Corporation, 231
Order of the National Labor Relations Board" shall read "Posted Pursu-
NLRB 657 (1977). See also Olympia Medical Corporation, 250 NLRB 146
ant to a Judgment of the United States Court of Appeals Enforcing an
(1980).
Order of the National Labor Relations Board."
648
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikers, I shall recommend that Kaiser be ordered to
Upon the foregoing findings of fact, conclusions of
cease and desist from those, or like or related, actions;
law, and upon the entire record herein, I issue the fol-
and that it take certain remedial action, including the
lowing recommended:
posting of a remedial notice to its employees at its Napa
plant.
ORDER 24
There is a question whether Kaiser should also be sub-
Th
, K s
S
C
Naa
jected to a "make whole" order. The proof at the hear-
T h e
C
n
spondent, Kaiser Steel Corporation, Napa,
ing revealed that employees Martin and Boyles wereCalifornia, its officers, agents, successors, and assigns,
prohibited from removing their tools, but Martin further
shall:
testified that he was able to locate another toolset to use
1. Cease and desist from:
on the interim job which he had secured. Boyles states
(a) Penalizing employees who are engaged in a lawful
that he made two unsuccessful efforts to find interim
economic strike by discriminatorily refusing to permit
work, 21 but then gave up, "knowing that I couldn't get a
them to remove their tools from its plant in order to pre-
job because I couldn't get my tools." The General Coun-
vent them from obtaining interim work elsewhere.
sel's brief is silent as to the appropriate remedy for the
(b) In any like or related manner interfering with, re-
violation which he alleged. Fraley & Schilling does not
straining, or coercing employees in the exercise of rights
provide clear guidance on this question. 2 2
guaranteed in Sections 7 and 13 of the Act, or discrimi-
It strikes me as entirely appropriate, in the present cir-
nating against them with respect to their terms and con-
cumstances, however, that Kaiser be ordered to make
ditions of employment in order to discourage member-
whole any strikers who were impaired in their ability to
ship in or activities on behalf of a labor organization.
obtain earnings during the strike by Kaiser's refusal to let
2. Take the following affirmative action necessary to
them remove their tools from the plant. Neither does it
effectuate the purposes of the Act:
appear to be fatal to the propriety of such a make-whole
(a) Make whole with interest any employees who suf-
order that no specific employee was shown at the unfair
fered losses of earnings during the period July 11-24.
labor practice stage of these proceedings to have been
1980, because they were prevented, in furtherance of
denied some available job because of Kaiser's unlawful
RKiser's unlawful tool-impoundment policy, from remov-
practices, especially where it would have been "futile"
i
t
t
t
at interim jobs
for strikers to have attempted to find such work when
„
,
,m e
a
l
o
Kaiser was wrongfully impounding their tools. See, e.g.,
(b) Preserve and, upon requestw
make available to the
Pipeline Local Union No. 38. affiliated with the Laborers'
B o a rd o r
li
t sidentit
a of te c kid s wem c h w o u l d aid in estab-
International Union of North America, AFL-CIO (Han-
lis
t he
ld e n h u e s of siking employees in the period
cock-Northwest, J. V.), 247 NLRB 1250, 1251 (1980), and
J u l y 1 1- 2 4 , 1 9 8 0 , a n d any suc h employees who attempt-
authorities cited. The complaint attacked Kaiser's general
e d
unsuccessfully to remove their tools from Kaiser's
prohibition against removal of tools by strikers, and
Napa, California, plant.
Kaiser admits that it was acting pursuant to a general
(c) Po st at its Napa, California, plant copies of the at-
policy and not merely withholding tools from particular
tached notice marked "Appendix." 25
Copies of the
individuals. Under those circumstances, I would not pre-
notice, on forms duly provided by the Regional Director
elude the General Counsel from showing at the compli-
for Region 20, after being duly signed by Kaiser's au-
ance stage, if the facts may so reveal, that strikers, in-
thorized representative, shall be posted immediately in
eluding Boyles and others, were injured financially by
conspicuous places, including in all places where notices
Kaiser's refusal to release their tools. I have therefore
to employees are customarily posted, and shall remain
provided in my recommended Order that Kaiser make
posted for 60 consecutive days thereafter. Kaiser shall
any such employees whole, with interest, in accordance
take reasonable steps to ensure that such notices are not
with established Board policies for the computation of
altered, defaced, nor covered by any other material.
backpay."2(d)
Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
" Boyles' lack of success in the two job-search contacts he mentioned
steps Respondent has taken to comply with it.
was because those firms had no openings-not because he had no tools.
"1 In that case, the administrative law judge did not clearly explicate
why he found it appropriate that employees Clark and Woods be made
21 In the event no exceptions are filed as provided by Sec. 102.46 of
whole for losses sustained in connection with the discriminatory reposses-
the Rules and Regulations of the National Labor Relations Board, the
sions, but not for periods while they were on strike (211 NLRB at 444).
findings, conclusions, and recommended Order herein shall, as provided
It may be that the Board, in adopting this portion of the administrative
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
law judge's remedial recommendations-believed that the employer's
become its findings, conclusions, and Order, and all objections thereto
"exclusive lease-back" rights would not have permitted striking owner-
shall be deemed waived for all purposes.
operators to use the trucks to gain independent earnings.
I In the event that this Order is enforced by a Judgment of a United
" F W. Woolmrth Company, 90 NLRB 289 (1950); Isis Plumbing d
States Court of Appeals, the words in the notice reading "Posted by
Heating Co.. 138 NLRB 716 (1962); and Florida Steel Corporation, 231
Order of the National Labor Relations Board" shall read "Posted Pursu-
NLRB 657 (1977). See also Olympia Medical Corporation, 250 NLRB 146
ant to a Judgment of the United States Court of Appeals Enforcing an
(1980).
Order of the National Labor Relations Board."