Marquette Co., Gulf & Western Natural Re-Sources Group

774 DECISIONS OF THE NATIONAL- LABOR RELATIONS BOARD Marquette Company, Gulf & Western Natural Re- sources Group and Local 50, District Council #8, United Cement, Lime and Gypsum Work- ers. Case 3-CA-10274 11 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 19 July 1982 Administrative Law Judge Richard H. Beddow Jr. issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed limited cross-exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel.' The Board has considered the decision and the record in light of the exceptions and brief2 and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The essential facts are not in dispute. On 19 No- vember 1979 Local 50, District Council #8, United Cement, Lime and Gypsum Workers (Union) was certified as the collective-bargaining representative of an office clerical unit of three employees at the Respondent's Catskill, New York facility. The Union for a number of years has represented a pro- duction and maintenance unit at the Respondent's Catskill facility and also represents employees at a number of other facilities operated by the Respond- ent. Bargaining for a clerical contract began on 3 April 19803 and involved 13 bargaining sessions, the last being held on 6 January 1981.4 At the outset of negotiations, the Union proposed that the clerical unit be placed under the existing produc- tion and maintenance unit contract, a position to which the Union adhered throughout most of the negotiations. The Respondent was equally adamant in its desire to negotiate a separate agreement. At the final bargaining session on 6 January, the Re- spondent's labor relations manager and negotiator, Carl Reed, stated that the parties were at impasse on several issues, including wage rates, but made a "final offer" which he requested be brought to the employees. Joseph Granich, the Union's district 1 The Respondent's request for en banc consideration of this case is denied. 2 The Respondent has requested oral argument The request is denied as the record, exceptions, and brief adequately present the issues and the positions of the parties. 3 The Respondent took no action to challenge the Union's representa- tive status after it was certified. 4 All dates refer to 1981 representative and negotiating spokesman, stated that he would take the offer to the membership, but that as far as he was concerned the offer was rejected. By letter dated 8 January, Reed requested that Granich inform him of the employees' decision with respect to this "final offer" no later than 21 January. By letter dated 23 January, Reed in- formed the Union that, because it had not respond- ed concerning acceptance of the offer, the clerical unit would be locked out on 29 January.5 The lockout began on that date. Reed testified that the Respondent decided to lock out its clerical employees because it was inter- ested in pursuing its bargaining objective of main- taining separate agreements for the clerical and production and maintenance units. He further testi- fied that the Respondent expected that the clerical employees would picket if an agreement was not reached and that the production and maintenance unit would honor the picket line. This belief was based on statements by Joseph Granich, the Union's negotiator, that if the clerical unit struck, the production and maintenance employees would not cross its picket line. Reed testified that the Re- spondent believed that winter was the best time for the Respondent to withstand a work stoppage. Ac- cording to Reed, business was slow and the Re- spondent had already planned to shut down pro- duction for approximately 6 to 7 weeks in late Jan- uary, although nearly all the production and main- tenance employees would be retained to do equip- ment maintenance work. The Respondent decided that, because it could scale down its maintenance needs during this period, it was "in excellent posi- tion to take a work stoppage" at that time rather than waiting until spring, when business customari- ly improved. Plant Manager Harry Philip corroborated Reed's testimony concerning the Respondent's business sit- uation in January and its plans to shut down pro- duction. He testified that inventory was at or near capacity and that the Respondent did not anticipate an increase in business until spring. He further testi- fied that, at the outset of the lockout, the Respond- ent anticipated that the office clericals' work could be handled by nonunit personnel because orders were low and payroll would decrease when the production and maintenance employees honored the clericals' picket line. However, 1 week into the lockout it became clear that the production and 5 By letter dated 16 January, Granich informed Reed of the employ- ees' rejection of the Respondent's final offer. However, Reed did not re- ceive Granich's response until after he had mailed his 23 January letter, due to the relocation of the Respondent's Nashville, Tennessee corporate offices. 285 NLRB No. 103 MARQUETTE CO. 775 maintenance employees would continue to work. In addition, several of the nonunit employees per- forming the clerical functions were unexpectedly needed elsewhere.6 Philip testified that at this point it was decided that outside help was needed. According to Philip, he first contacted the New York State Employment Agency and Manpower, both of which indicated "they would not enter into a labor dispute." He also contacted Kelly Services, which did not have any qualified individuals in the area. However, Kelly Services told Philip that if he found any individuals on his own, he could refer them to Kelly who would handle their placement.7 Philip testified that he then searched his file of pre- vious job applicants and contacted these individ- uals, all of whom refused "due to the temporary nature of the work." Finally, Philip contacted vari- ous local businesses and acquaintances and located and hired two persons willing to accept temporary employment and "getting involved with a labor dispute." Approximately a month later, a third tem- porary replacement was hired.. On 8 May the national union, which was by this time engaged in companywide multiplant negotia- tions concerning the production and maintenance unit, reached an agreement with the Respondent covering the clerical unit. The locked-out employ- ees reported for work the following Monday, 11 May, and their temporary replacements were im- mediately terminated. The judge found that, although there was no evi- dence that the Respondent failed to bargain in good faith, the "prolonged lockout with the use of replacements was inherently destructive of protect- ed employee rights" and was "so inherently preju- dicial . . . that no proof of antiunion motivation is necessary even if Respondent [sic] conduct had been shown to be motivated by business consider- ations." In so doing, he relied in substantial part on his finding that the lockout occurred at a time when the Respondent did not have "a reasonable or honest basis to substantiate its perception that the Union would effectuate a work stoppage during that immediate period in time." According- ly, he concluded that the Respondent violated Sec- tion 8(a)(3) and (1) of the Act by utilizing replace- ment employees following the lockout of the unit employees. We reverse. 6 The Respondent had intended to utilize, inter alia, its chief chemist and his two assistants to help out with the clerical duties. However, about this time the Respondent 's chemist was unexpectedly required to perform some major laboratory work for a customer. 7 The Respondent's corporate policy was to hire temporary help through such agencies to avoid both the necessity of obtaining corporate approval for hiring and the paperwork and expense for insurance and fringe benefits required for employees on its payroll. .In American Ship Building Co. v. NLRB,B the Su- preme Court held that an employer may lawfully lock out employees in order to exert economic pressure in support of its legitimate bargaining posi- tion. The Court held that, although a lockout "de- prives the union of exclusive control of the timing and duration of work stoppages calculated to influ- ence the result of collective bargaining negotiations . .. there is nothing in the statute which would imply that the right to strike `carries with it' the right exclusively to determine the timing and dura- tion of all work stoppages."9 A strike need not be imminent for a lockout to be lawful.1 ° Rather, an employer may initiate a lockout "for the sole pur- pose of bringing economic pressure to bear in sup- port of'his legitimate bargaining position."11 Thus, even assuming that a strike was not imminent or reasonably anticipated, the judge erred in attaching significance to the alleged lack of justification for the Respondent's fear of a strike.12 Such reliance is especially inappropriate when, as here, there is no allegation that the lockout itself was unlawful. Having found that the Respondent's conduct in locking out the clerical employees was lawful, we must consider whether the use of temporary re- placements approximately 1 week into the lockout violated the Act, as found by the judge. In Harter Equipment, 280 NLRB 597 (1986), the Board reaf- firmed the principle enunciated in the plurality' opinion in Ottawa Silica Co.,13 that, absent specific proof of antiunion motivation, an employer does not violate Section 8(a)(3) and (1) of the Act by hiring temporary replacements in order to engage, in business operations during an otherwise lawful lockout. In the instant case the uncontradicted evidence shows that, at the outset of the lockout, the Re- spondent intended to perform the clerical work with nonunit employees. It was only when faced with the unanticipated increase in the clerical 8 380 U S 300 (1965). 9Id.at310 io In American Ship Building, the Court reversed the Board's finding that the employer's lockout of employees was unlawful. In its decision, the Board had rejected a trial examiner's finding that the lockout was lawful because the employer had reasonably anticipated a strike Ameri- can Ship Building, 142 NLRB 1362, 1364 (1963). 11 American Ship Building Co. v. NLRB, 380 U S. at 318 (1965). is The record indicates, however, that the Respondent had a genuine basis for fearing that the clerical employees would strike and picket and that the production and maintenance employees would support the strike and honor the clericals' picket line That this scenario did not in fact occur does not make the Respondent's fears any less reasonable, especial- ly in light of union negotiator Granich's specific comments several months earlier that if the clericals did picket, the production and mainte- nance employees would not cross the picket line. is 197 NLRB 449 (1972), enfd. mem. 482 F.2d 945 (6th Cir 1973), cert. denied 415 U.S 916 (1974). See also Inter Collegiate Press, 199 NLRB 177 (1972), at d. 486 F.2d 837 (8th Cir 1973), cert. denied 416 U.S. 938 (1974). 776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD workload occasioned by the continued employment of the production and maintenance employees and an increase in the regular work of the in-plant re- placements that the Respondent decided, to obtain outside help to perform the work of the locked-out clericals. Even then, the Respondent went to great lengths to obtain individuals who were willing to accept temporary employment, 14 In addition, tem- porary replacements were utilized only for the du- ration of the labor dispute. When an agreement was reached in May on the outstanding issues, the clerical employees immediately returned to work and the replacements were terminated. We find that the Respondent's use of temporary replacements was "a measure reasonably adapted to the achievement of a legitimate employer inter- est." 15 There is no evidence of antiunion motivation in the instant case. We therefore conclude that the Respondent's use of temporary replacements during a lawful lockout in order to engage in busi- ness operations did not violate Section 8(a)(3) and (1) of the Act. Accordingly, we shall dismiss the complaint. ORDER - The complaint is dismissed. 14 We reject the judge's comment that the Respondent "initially may have attempted to hire permanent worked [sic] and only resorted to tem- poraries when others could not be hired " Such a statement is wholly un- supported by the record Although the Respondent's plant manager Philip testified that at one point he contacted those individuals who had applications on file with the Respondent, he further testified without con- tradiction that these former applicants were offered temporary employ- ment, as were all subsequent replacements 15 Harter Equipment, 280 NLRB at 599 Alfred M. Norelc Esq., for the General Counsel. George Moehlenhof Esq., of Chicago, Illinois, for the Re- spondent. Samuel L. Spear, Esq., of Philadelphia, Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE RICHARD H. BEDDOW JR., Administrative Law Judge. This matter was heard in Albany, New York, on March 23 and 24, 1982. The proceeding is based on a charge filed February 19, 1981, by Local 50, District Council #8, United Cement, Lime and Gypsum Workers. The General Counsel's complaint alleges that the Respondent, Marquette Company, violated Section 8(a)(1) and (3) of the National Labor Relations Act by utilizing temporary replacements to replace locked out clerical unit employ- ees represented by the Union. Respondent denies that its actions constituted an unfair labor practice. Briefs were filed by all the parties. On a review of the entire record in this case and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is engaged in the manufacture, distribu- tion, and sale of cement and related products . It operates a plant in Catskill, New York, and has direct outflow to points outside New York in excess of $150,000 yearly. It admits that at all, times material it is and has been an em- ployer engaged in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION Local 50, District Council #8, United Cement, Lime and Gypsum Workers (the Union) is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE Respondent operates several cement plants throughout the country. The Union represents production and main- tenance employees (P & M), at nine of these plants. Bar- gaining for P & M employees is conducted on a joint, natiowide basis and results in a basic companywide agreement and supplemental agreements applicable to a particular plant. During the events in question, the Cats- kill P & M unit was covered by basic and supplemental agreements having a term of May 1, 1978, through April 30, 1981. Successor agreements were reached in May 1981, having a term of May 1, 1981, through April 30, 1984. Respondent's Catskill plant was acquired by Re- spondent in 1973. The Union has represented the produc- tion and maintenance employees employed by Respond- ent or its predecessors at the Catskill plant for the past 40 years. It has never engaged in a strike against Re- spondent. On November 19, 1979, following a Board- conducted election, the Union was certified as represent- ative of the Catskill clerical and office employees. The tally of ballots was two cast for the Union and one against. The clerical unit had never previously been rep- resented by a labor organization. Bargaining for a clerical contract started on April 3, 1980. The Union's bargaining team consisted of District Representative Joseph Granich, who acted as spokesman, together with Nicholas Granich, grievance chairman of the P & M unit, and unit member Rae Halvorsen. The Respondent was represented by Carl Reed, labor rela- tions manager for Gulf and Western Natural Resources Group in Nashville, Tennessee, who acted as chief spokesman, as well as Plant Manager Harry Philip and Ike Nusbaum, office manager. The group met a total of 13 times with the last session held on January 6, 1981. At the first session, the Union proposed that the clericals be placed under the existing P & M contract in order to simplify bargaining and servicing of the unit. The Re- spondent's rejected this proposal and insisted on negotia- tion of a separate agreement. The Union proposed a sep- arate agreement based essentially on the same format as its P & M contract. By January 6, 1981, through the MARQUETTE CO. normal give and take of bargaining the parties had made substantial progress on noneconomic items. As of Janu- ary 6, 1981, the prime unresolved issues were union secu- rity and wages, with the Union proposing full union shop while the employer proposed a modified open shop. Concerning wages, the Union proposed that the clericals be placed under bracket 15 of the P & M contract, which would equate to a rate of $8.82 ' per hour. The Company proposed a 62-cent-an-hour increase retroac- tive to September 1, 1980, and a 56-cent increase effec- tive September 1, 1981.11 At the January 6, 1981 bargaining session Reed assert- ed they were at an impasse, and made a "final offer" and requested that the Union bring the offer back to the membership. Joseph Granich said as far as he was con- cerned it was rejected, but he agreed to take the offer to the membership. He also said, "We spent a lot of time and stress to work this out," and suggested calling in a Federal mediator. By letter dated January 8, 1981, re- ceived by the Union on January 15, 1981, Reed asked Granich to inform him no later than January 21, 1981, whether the Company's offer had been accepted. Gran- ich replied by letter dated January 6, 1981, received by the Company on January 20, 1981, stating that the offer had been rejected by the membership and requesting open dates from Reed so that bargaining could resume. By letter dated February 4, 1981, Reed responded to Granich's letter of January 6, 1981, and stated that he saw, no reason to resume bargaining. In the meantime, by letter dated January 23, 1981, re- ceived January 28, 1981, Reed notified the Union that a lockout of the clerical unit would take place on January 29, 1981. Granich responded to Reed, by letter dated January 29, 1981, in which he characterized the lockout as an unfair labor practice and unconditionally offered on behalf of the three clerical unit members "to continue or return to work immediatel'ly." Other than Reed's letter, the Union received no communications, oral or written, from the Respondent concerning the lockout. During the previous bargaining the Respondent did not ask the Union for a committmenl not to strike in order to avoid a lockout nor did it -ask the Union if it intended to strike. The clerical unit employees were first informed of the lockout on Monday, January 26, 1981, when Plant Man- ager Philips called them into his office and told them that they would be locked out and that they should not bother to come into work on Thursday, January 26, 1981. The clericals asked Philip for a written explana- tion. On Wednesday, January 28, 1981, Philip called Hal- vorsen into his office and told her that an expected letter had not arrived. Later in the afternoon, Philip again called Halvorsen into his office and informed her that her insurance benefits had been terminated. Halvorson replied, "With the benefits being terminated, this is like ' Halvorsen, at the time of the lockout, was receiving a wage rate of $6.55 per hour. She had last received a raise in July 1979 when she re- ceived the annual July raise given to salaried employees. She received no raise in 1980 Clerical unit member Linda Kinch at the time of the lock- out was receiving an hourly rate of $5.50 per hour. She too received her last raise in July 1979 and received no raise in 1980. 777 being fired isn't it." Philip replied, "Yes, its like being fired." At the end of the day, Philip gave the clerical unit members a transcribed copy of the letter announcing the lockout. Following the lockout the clerical unit members made no attempt to picket or to induce the production and maintenance unit members to engage in any strike activi- ty. Neither Kinch or Halvorsen had further contact with the Company concerning the lockout. Respondent did not inform them or the Union that the lockout would end when a contract was reached in the 'clerical unit, that they remained employees, or that temporary re- placements had been hired. Both Kinch and Halvorsen were uncertain about their status and proceeded to look for other employment. Through hearsay in the small community of Catskill they heard that they had been permanently replaced. The rumors were not dispelled by Kinch's supervisor, Nate Prest, who told'Kinch in April, 1981, at a local restaurant, that if he had his way they would eliminate her job and "we'll put an end to this." Respondent's witnesses testified that the attitude of the Union during negotiations had led them to believe that P & M workers would strike either on expiration of the P & M agreements in May 1981, or on an earlier erection of a picket line by the office and clerical employees. The Union felt that there was nothing said during the negoti- ation that was a threat to strike. It admits that it never said it would not strike, but asserts that to do so would be an unrealistic negotiating tactic. The Respondent's asserted fears were based mainly on comments made during the first day of negotiations on April 3, 1980, by Joseph Granich. These comments, as reflected in the Respondent's notes of the meeting, were to the effect that: "there should be common treatment of cement people, that Local 50 will not cross picket and that the Union was living with contract now-three more won't be a problem-Local 50 was trying to satisfy three people-if three put up picket line, as a matter of practicality no one would cross line-don't want head on problems in the future." A Respondent's witness testified that the attitude at this meeting was that there would be a cooperative effort in getting an agreement together and that Granich had wanted to fold the three individuals into the basic contract so there would not have to be un- necessary separate negotiations. It also was established that Reed was aware that the Union's constitution had a complicated strike vote proce- dure. Reed also testified that plant managers kept him in- formed when a strike vote was taken. At no point did the Union seek strike authorization for the clerical unit, nor was the Company ever informed that the clericals had voted to strike, and at no point during the bargain- ing did the Company inquire whether the clericals in- tended to strike. As noted, negotiations came to an apparent impasse on January 6, 1981, when the Respondent made its final offer. The next day, Plant Manager Philips began prepar- ing for a work stoppage by contacting his corporate office in Nashville for advice and making arrangements for the purchase of tools, in-plant sleeping facilities for 778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD supervisors, removal of finished product from the plant- site, and the taking of additional security precautions. The Respondent was prepared to face the' possibility of a shut down by January 29, and actually had planned it. Winter is a normal slow period at the Catskill plant as a result of low construction activity in the northeastern United States and ice conditions on the Hudson River, which normally carries 70 to 80 percent of the plant's production on barges. Accordingly, Respondent's major repair and maintenance work is generally conducted in the winter. In January 1981, the viisdom of shutting down for maintenance was enhanced by the economic conditions in the construction industry, which resulted in Respondent's inventories completely filling the Compa- ny's storage capacities in Catskill; New York City; Prov- idence, Rhode Island; and Boston, Massachusetts, loca- tions all customarily supplied by the Catskill plant. Under the existing contract, P & M employees are re- quired to be used in performing maintenance. Philip an- ticipated that with the plant shut down, the need for clerical work would be drastically reduced and could be performed by nonunion chemist employees. When the lockout occurred and the anticipated pickets were not posted on January 29, and all production and maintenance employees reported for work, Philip's plan for operation of the office became inadequate. The chem- ists had to perform their normal duties and, faced with the unanticipated demands of full payroll preparation and a normal load of clerical work, Philip's sought a source of temporary help. He examined all applications in the plant's files, but found no applicants interested in tempo- rary employment.2 He unsuccessfully contacted the state employment service and Manpower Incorporated (both were unwilling to refer temporary employees to a plant involved in a labor dispute). He then resorted to Kelly Services, who agreed to provide their service if Philip -found employees in the area. The P & M unit members proceeded to perform work necessary for the planned maintenance shut down that lasted from January 19 until the middle of March 1981. The maintenance shut down resulted in the layoff of only 3 of the 118 P & M unit members. A contract was reached on May 8, 1981, when the national union, at companywide, multiplant, production and maintenance unit negotiations, reached agreement with the employer covering the three clerical employees. The locked-out employees returned to work on May 11, 1981. IV. DISCUSSION The issue in this proceeding is whether a lockout, within the framework of the background facts noted above, constitutes an unfair labor practice. As noted by the parties, the basic concepts pertaining to this issue were considered by the United State Su- preme Court in American Ship Building Co. v. NLRB, 380 U.S. 300 (1965), and NLRB v. Brown Food Stores, 8 Respondent's corporate policy is said to prohibit the hiring of tempo- rary employees other than through employment agencies for reasons of administrative expense. Thus, Philip's asserted initial efforts to find "tem- porary" replacements would appear to be false or against company policy. 380 U.S. 278 (1965), and, subsequently, by the Seventh Circuit in Inland Trucking Co. v. NLRB, 440 F.2d 562 (1971). The Board's determinations on this issue are reflected in the lead cases of Ottawa Silica Co., 197 NLRB 449 (1972), and Inter Collegiate Press, 199 NLRB 177 (1972), in which the Board found that, absent a showing of an- tiunion motivation, that was not found, an employer does not violate Section 8(a)(3) or (1) of the Act by hiring temporary replacements to continue operations during an otherwise lawful lockout. In those cases Members Fan- ning and Jenkins followed the reasoning of Inland Truck- ing, supra, and endorsed the following test for determin- ing the legal propriety of a lockout and concomitant op- eration with replacements (Inter Collegiate Press, supra at 179): (1) where such conduct is inherently destructive of protected employee rights, no proof of antiunion motivation is required even if the employer intro- duces evidence that the conduct was motivated by business considerations, and (2) where the adverse impact on employee right is "comparatively slight," an antiunion motivation must be proved if the em- ployer has come forward with evidence of,legiti- mate and substantial justification therefor. Former Chairman Miller in his concurrence with the ul- timate conclusion said (id. at 178): If I understand the reasoning of the majority opin- ion of the Supreme Court on the Brown case, there- fore, it is incumbent upon this Board in each case involving the use of temporary replacements during an otherwise legitimate lockout to: (1) Weigh care- fully all of the circumstances in order to determine the extent to which the use of such replacements has a tendency to discourage union membership, and (2) balance against our conclusions in that regard the extent to which the use of such replace- ments was supported by a legitimate and significant business justification or, on the other hand, the extent to which antiunion rather than bona fide business considerations motivated the employer's decision to utilize replacements. In Ottawa Silica, supra at 449, Chairman Miller noted that he concurred with the result: only because (1) Respondent utilized only its own non-unit personnel in carrying on its operations during the lockout, (2) the Union had refused to provide any assurance of continued operations, and there was therefore reason to believe that a strike was imminent, and (3) there was here some evi- dence, although perhaps not totally conclusive evi- dence, of a bona fide business justification for Re- spondent's actions. Subsequently, in Loomis Courier Service, 235 NLRB 534 (1978), Members Fanning and Jenkins reaffirmed their position that a lockout and concomitant operation with replacements is impermissible conduct. The Board found MARQUETTE CO. that the Respondent's resort to the severe sanction of a lockout involving wholesale dismissal and partial oper- ation with new employees constituted conduct that was inherently destructive of employee rights and designed to frustrate collective bargaining , citing American Ship Building, supra. Here, the Respondent contends that lockouts involving the use of temporary replacements are not inherently de- structive of protected employee rights and not per se un- lawful, citing the above-noted cases. It further argues that under the "Miller test" it has shown a legitimate business justification inasmuch as it allegedly was faced with a union bargaining tactic to force a merger of bar- gaining units, as, well as a threatened strike, while at the same time it was in a better position to risk an expected work stoppage because of seasonal and economic condi- tions. It further contends that its timing of the lockout was in response to the Union's conduct (rejecting its final offer) and that no replacements were hired until after the unanticipated continuation of work by the production and maintenance employees and the unforeseen denial-of the substitute services of its nommion chemist. As pointed out by the General Counsel , however, a number of factors in this case indicate an infringement on protected employee rights . Specifically, the clerical unit had no history of prior bargaining. In view of the Re- spondent's final monetary offer of January 6, 1981, it is not a clear offer of terms and conditions of employment of greater advantage 'to the unit than those existing prior to certification, inasmuch as the clerical employees had failed to receive their customary July raise in 1980. At the time of the lockout the Respondent had rejected the Union's proposal of a union shop. Also, the Respondent did not inform the Union or the affected unit members that temporary replacements had been hired , that they remained employees, or that the lockout would continue only until a contract was reached . And, the Respondent did not ask the Union for a commitment not to strike. The Respondents reasons for its asserted fear that a strike or work stoppage was imminent or probable appear to be tenuous at best. The Union had a long his- tory of bargaining with the Respondent and its predeces- sor and had never had a work stoppage . Moreover, the Union had an elaborate internal procedure, known to Re- spondent, that had to be followed before a strike could occur. The negotiating sessions were essentially free of any strike threats, real or implied. The only real mention of the subject occurred during the first meeting and it amounted to little more than a rhetorical acknowledge- ment of possible future permissible conduct that is always a part of any labor-management relationship. Moreover, these remarks were made during an atmos- phere of progressive and harmonious bargaining and were not shown to have been repeated or emphasized at future bargaining sessions . Last, even when the Union was presented with a "final" offer by the Respondent and faced with an apparent bargaining impasse, it re- sponded with a suggestion of Federal mediation rather than a threat of a work stoppage. These factors and, in addition, the general economic climate that would tend to reduce the likelihood of employee 's risking the loss of pay and benefits, lead me to conclude that the Respond- 779 ent did not have a reasonable or honest basis to substanti- ate its perception that the Union would effectuate a work stoppage during that immediate period in time. The record also shows that the Respondent accentuat- ed the effect of its lockout by hiring replacement clerical employees after it became obvious that clerical unit was not going to picket and that there would be no general work stoppage by the large unit of production and main- tenance employees. It also appears that Respondent ini- tially may have attempted to hire permanent workers and only resorted to temporaries when others could not be hired. As noted, the Union was certified by a one vote margin in the clerical unit . The presumption afford- ed by the certification year expired in November 1980. Thus, if the lockout had pressured only one of the two union supporters to abandon the Union, it was faced with the threat of withdrawal of recognition or decertifi- cation. Under these circumstances, I conclude that the pro- longed lockout with the use of replacements was inher- ently destructive of protected employee rights. It was unjustified by any claim to possible qualifying business reasons and it was effectively designed to frustrate col- lective bargaining by the clerical unit. I further conclude that the Respondent's conduct is so inherently prejudicial to employee rights that no proof of antiunion motivation is necessary even if Respondent's conduct had been shown to be motivated by business considerations. See Loomis Courier Service, supra. It is further concluded that the record shows the Re- spondent's actions and its continuation of the lockout with the use of temporary replacement provided a sub- stantial tendency to discourage union membership and that the Respondent's admitted use of the lockout to force a work stoppage by the production and mainte- nance employees otherwise lacks legitimate and signifi- cant business justification. Accordingly, I also conclude that the concurring rationale expressed in Inter Collegiate Press, supra, also supports the General Counsel's allega- tions that the Respondent's conduct was not permissible. In summation, I conclude that the lockout and corre- sponding continued operation with replacement employ- ees under the circumstances noted above infringed on the clerical unit employee's right to collective bargaining and is an unfair labor practice in violation of Section 8(a)(1) of the Act as alleged. This action also discriminat- ed against them in regard to their tenure of employment and is in violation of Section 8(a)(3), as alleged. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By utilizing replacements employees following its lockout of employees in the clerical unit of the Union, the Respondent has engaged and is engaging in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. 780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it is recommended that the Re- spondent be ordered to cease and desist therefrom and to take the affirmative action described below , which is de- signed to effectuate the policies of the Act. With respect to the necessary affirmative action, it is recommended that the Respondent be ordered to make employees Lucy Davidson , Rae Halvorsen, and Linda Finch whole for the losses that they suffered as a result of discrimination against them in accordance with the method set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed by the Board in Flori- da Steel Corp., 231 NLRB 651 (1977). See also Isis Plumbing Co., 138 NLRB 716 (1962). Other than this deviation from acceptable labor rela- tionship practices evidenced by its apparent problem' with formalizing an agreement with the clerical employ- ees at its Catskill plant and the resulting lockout and re- lated illegal practices, it is not shown that Respondent has an inclination generally to interfere with or restrain employees in,the exercise of rights guaranteed them in Section 7 of the Act and, accordingly, imposition, of a broad order is not recommended. [Recommended Order omitted from publication.]