259 NLRB 643

Kaiser Steel Corporation

Last amended: 1981Year: 1981Length: 27,330 wordsOfficial source
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."
259 NLRB 643: Kaiser Steel Corporation | Justis AI