Bi County Wholesale Beverage Distributors Labor Association

466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Bi County Wholesale Beverage Distributors Labor Association and Local No 247, International Brotherhood of Teamsters, Chauffeurs, Ware housemen and Helpers of America , AFL-CIO Daniel L Jacob & Co, d/b/a Jack Smith Beverages and Local No 247, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO Try Me Distributing Company and Local No 247, International Brotherhood of Teamsters, Chauf feurs, Warehousemen and Helpers of America, AFL-CIO 0 & W, Inc and Local No 247, International Brotherhood of Teamsters, Chauffeurs, Ware housemen and Helpers of America, AFL-CIO Cases 7-CA-27065 7-CA-27145(1) 7-CA- 27145(2) and 7-CA-27145(3) October 31 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On February 25 1988 Administrative Law Judge Lowell Goerlich issued the attached deci sion The General Counsel and the Charging Party filed exceptions and supporting briefs and the Re spondents filed an answering brief i 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 briefs and has decided to affirm the judge s rulings findings 2 and conclusions only to the extent consistent with this Decision and Order The judge found that the Respondent Employ ers 3 shutdown of operations from May 4 until May 11 1987,4 did not constitute a lockout of its employees For the reasons set forth below we dis agree and we further find that the lockout was un lawful The facts which were not recited in full by the judge, are undisputed The Respondent Employers have been parties to a series of collective bargain ' The Respondents motions to strike portions of the General Counsel s and the Charging Party s exceptions are denied 2 The Charging Party has excepted to some of the judge s credibility findings The Board s established policy is not to overrule an administra tive law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re versing the findings 3 The Respondent Employers are members of the Respondent Associa tion which exists for the purpose inter aha of representing its employer members in negotiating and administering collective bargaining agree ments with the Union 4 All dates are in 1987 unless otherwise noted ing agreements with the Union In 1984 the Re spondent Association represented by Hubert Ryan and the Union represented by Jim Brodel entered negotiations for a new agreement The Union en gaged in a strike during which time Respondent Try Me withdrew from the Association but contin ued to be represented by Ryan Both the Associa tion and Try Me reached agreement with the Union for 3 year collective bargaining agreements the terms of which were identical By letter dated August 3 1984 Ryan sent the written agreements to the Union for its review and signature Walter David Schuler who had replaced Brodel as business representative reviewed the documents with the Unions employee negotiators and raised a potential discrepancy in the agreement with Ryan who satisfied Schuler s concerns Schuler however did not execute the agreements Despite the Union s failure to execute the agree ments the parties stipulated that each Respondent operated in accordance with the terms and condi tions agreed upon in June 1984 In this regard the stipulation provides For example each Respondent made payroll deductions for Union dues and submitted such monies to Teamsters Local No 247 each Re spondent processed grievances pursuant to the provisions of the collective bargaining agree ment each Respondent paid bargaining unit employees wages holidays and vacations pur suant to the terms of the collective bargaining agreement each Respondent paid contribu tions to the Michigan Conference of Teamsters Welfare Fund pursuant to the collective bar gaining agreement each Respondent disci plined bargaining unit employees pursuant to the terms of the collective bargaining agree ment and each Respondent made contribu tions to the Central States Southeast and Southwest areas Pension Fund pursuant to the collective bargaining agreement In addition in the spring and fall of 1986 pursu ant to the terms of the agreement Respondent 0 & W engaged in bargaining with the Union about the possibility of implementing a presale method of dis tnbution During these negotiations Ryan asked Schuler when he was going to sign the agreement Schuler said he would sign it if Ryan sent him some clean copies of it In a telephone conversa tion with Ryan in February 1987 Schuler informed Ryan that he had not received the copies of the agreements for his signature Thereafter Ryan sent the copies to Schuler who executed them but did not return the signed copies to Ryan 291 NLRB No 81 BI COUNTY BEVERAGE DISTRIBUTORS 467 By letter to Schuler dated February 23 Ryan ad vised that he would be representing the Respond ent Employers in upcoming contract negotiations with the Union Ryan also stated that [p]ursuant to Article XXX of the Agreement Between Bi County Wholesale Beverage Distributors and Teamsters Local No 247 this letter shall also serve as the Employers notice of cancellation of the previously noted Agreement effective May 1 1987 The parties held bargaining sessions for a new contract on April 2 and 21 and May 2 and 3 On the evening of May 3 the Respondents presented the Union with its final proposal stating that the proposal would be null and void if not accepted by the Union within 48 hours That same evening the Respondent Employers decided to shut down their businesses the next day and drafted the fol lowing notice to their employees 5 The contract between Local 247 and the Com pany expired on April 30 1987 So that the bargaining committee could bargain over the weekend of May 2nd and 3rd we agreed to extend the old contract through May 1 1987 During the weekend negotiations the Employ ers made their final offer which will remain in effect until 12 midnight May 5 1987 If the final offer is not accepted and ratified by the Union and its members prior to May 5 1987, 12 midnight it will be null and void At the present time we do not have an agreement with your Union In the absence of such an agreement we are not willing to allow you to work When the new contract is agreed to be tween the Company and the Union you will be notified as to the date and time for report ing to work This notice was posted by each of the Respondent Employers and the employees were not allowed to work from May 4 until May 11 By letter dated April 24 the Union notified the Michigan Employment Relations Commission with a copy to the Federal Mediation Board that the collective bargaining agreement had been reopened for negotiations 6 By letter dated May 6 the Re ° Although as the judge stated the record is unclear about the precise time or date the notice was posted by the Respondent Employers it is undisputed that the notice was drafted on the evening of May 3 9 The Union s letter which apparently was a form letter stated that the Union had served notice on the Respondent Association reopening the collective bargaining agreement and that the letter was sent in com phance with Sec 8(d)(3) At the bottom of the letter however the Union typed in that the Respondent Association had reopened the agreements on February 23 and the Union attached a copy of the Respondent Asso ciation s letter described above spondent Association notified the Federal Media tion and Conciliation Service and the Michigan Department of Labor that the parties are current ly involved in the negotiation of a successor labor agreement the previous agreement having ex pired As set forth in detail by the judge the Respond ent Employers at the hearing identified two reasons for the shutdown First there had been a dramatic increase in sales to their customers prior to the shutdown and because of this large amount of in ventory held by the customers there was not suffi cient work for their employees to perform during the week of May 4 Second the Respondent Em ployers were concerned about the possibility of a strike and the resulting potential for violence and sabotage When their customers inventory had dwindled and their fears of a strike and strike vio lence were not realized the Respondent Employers decided to reopen on May 11 ' Based on this testimony which the judge cred ited he concluded that the shutdown was not an effort to gain a collective bargaining advantage for the Respondents over the Union but rather was for the purpose of avoiding an unprofitable period of work resulting from lack of customer orders and anticipated losses evolving from probable strike vi olence For the following reasons although ac cepting the judge s credibility resolutions we reject his conclusion and find that the shutdown consti tuted a lockout in support of its bargaining posi tion Both the timing of the shutdown and the notice posted by the Respondent Employers strongly indi cate that the shutdown was implemented primarily to bring pressure on the Union to accept the Re spondent Employers final offer Thus the decision to shut down was made by the Respondent Em ployers immediately after presentation to the Union of their final offer which remained effective for only 48 hours and the shutdown was scheduled to begin the next morning The notice informing the employees of the shutdown which the Respondent Employers drafted at the time of their decision to shut down gave as the only reason for the shut down the absence of a new collective bargaining agreement with the Union In fact the memo indi cated that when a new agreement was reached the employees could return to work Such a statement belies any suggestion that a lack of work was the primary reason for the shutdown To the contrary the memo suggests that if the Union had immedi ° The Union sent the Respondents a telegram during the week of May 4 offering to extend the collective bargaining agreement The same offer had been made on several occasions during the negotiations In fact the Respondents agreed to extend the contract through May 1 1987 468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ately accepted the Respondents final offer the shutdown would have immediately ended and the employees would have returned to work despite any lack of work In addition the Respondent Employers admitted that the shutdown was prompted by their fears of a strike and possible strike violence further evidenc ing that the shutdown was not related solely to the lack of customer orders but rather to the status and posture of negotiations 8 Under these circumstances we find that even though the Respondent Employers were concerned about the imbalance in inventory the shutdown would not have occurred without the Respondent Employers desire to bung pressure on the Union in support of their bargaining position Thus we find contrary to the judge s assertion that the shutdown constituted a lockout as contemplated by the Supreme Court in American Ship Building Co v NLRB 380 U S 300 (1965) 9 From this finding it follows that the lockout was unlawful for failure of the Respondents to comply with the requirements of Section 8(d) of the Act 10 The Respondents were the initiating party desiring to terminate the 1984-1987 collective bargaining agreement thereby obligating the Respondents to satisfy the notice requirements specified in Section 8 We also note the lack of evidence that the Respondent Employers had ever before shut down operations when inventory was temporarily out of balance and their failure to introduce any evidence documenting either the extent of the imbalance in inventory at the beginning of the shutdown or the correction of any such imbalance by the end of the shut down This lack of evidence is another indicator that the primary motiva tion for the shutdown was not necessarily inventory considerations However as noted above we are not overturning the judge s crediting of testimony indicating that inventory considerations also entered into the Respondent Employers calculations Our finding that their collective bargaining objectives substantially motivated the shutdown is not incon sistent with the credited testimony 9 In American Ship the Court held that a postimpasse temporary lock out for the sole purpose of bringing economic pressure to bear in support of the employers bargaining position did not violate Sec 8 (a)(1) or (3) The Court distinguished this type of lockout from the situation where an employer shuts down temporarily for reasons of renovation or lack of profitable work unrelated to his collective bargaining situation Id at 308 As shown above we find that the shutdown in the instant case was not unrelated to the Respondents bargaining position but rather was designed to bring economic pressure on the Union to accept the Re spondents final contract proposal 10 Sec 8(d) provides in relevant part That where there is in effect a collective bargaining contract cover ing employees in an industry affecting commerce the duty to bar gain collectively shall also mean that no party to such contract shall terminate or modify such contract unless the party desiring such ter mination or modification- (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute and simul taneously therewith notifies any State or Territorial agency estab fished to mediate and conciliate disputes within the State or Tern tory where the dispute occurred provided no agreement has been reached by that time and (4) continues in full force and effect without resorting to strike or lockout all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract whichever occurs later 8(d) We base this finding on the Respondent Asso elation s February 23 letter to the Union that serve[d] as the Employers notice of cancellation of the 1984-1987 collective bargaining agreement Notwithstanding the Respondents obligations under Section 8(d) the first notification sent by the Respondents to the Federal Mediation and Concil iation Service and the appropriate state agency was on May 6 2 days after the lockout had com menced It was thus not a 30 day notification re quired prior to strike or lockout as set forth in Sec tion 8(d)(3) and (4) It is well settled that failure to give the required 30 day notice to Federal and state agencies under Section 8(d)(3) bars a strike or lockout Weathercraft Co of Topeka 276 NLRB 452 453 (1985) The Respondents contend that the proscriptions of Section 8(d) do not apply in this case because there was no collective bargaining agreement in ex istence between the Respondent Employers and the Union and even if there were such an agreement the Respondent Employers were not the initiating party seeking to terminate or modify it We find no ment in either contention It is undisputed that each of the Respondent Em ployers including Respondent Try Me reached agreement in 1984 with the Union for a 3 year col lective bargaining agreement Although the Union never executed the agreements each Respondent operated in accordance with the provisions of the agreements including the payment of the wages and benefits set forth in the agreements the proc essing of grievances and the disciplining of em ployees In addition the Respondents never con tended to the Union during the term of the agree ments that the failure of the Union to execute the agreements led them to conclude that no agree ments were in existence To the contrary all corre spondence between the parties including the Re spondent Associations notice of termination of the agreements indicates that the Respondents be lieved that collective bargaining agreements in fact existed Further the Union through its actions during the term of the agreements indicated that agreements existed Despite an initial reservation about whether one provision of the agreement had been accurately reflected by the Respondents the Union acted in accord with the provisions of the agreements including the processing of grievances and its midterm bargaining with Respondent 0 & W In addition in response to the Respondents re quests that the Union execute the agreements the Union never took the position that the agreements did not exist rather on each occasion the Union indicated it would execute the agreements BI COUNTY BEVERAGE DISTRIBUTORS 469 By their course of conduct the Respondents as well as the Union manifested an intention to be bound by the 1984-1987 agreements Cauthorne Trucking 256 NLRB 721 (1981) remanded on other grounds 691 F 2d 1023 (D C Cir 1982) As the Third Circuit stated in NLRB v Operating En gineers Local 825 315 F 2d 695 699 (3d Cir 1963) That the Union failed to sign the agreement is im material for any written contract though signed only by one of the parties binds the other if he ac cepts it and both act in reliance on it as a valid contract Accordingly we find that the parties were bound by the 1984-1987 agreements and that contrary to the Respondents contention the Re spondents were obligated to satisfy the require ments of Section 8(d) The Respondents contention that the Union not the Respondents was the initiating party within the meaning of Section 8(d) and thus had the obliga tion to notify the Federal and state agencies is simi larly without merit The Respondents base their contention on the fact that the Union in 1985 re quested modifications to the agreements as well as on the Union s April 24 letter to the state and Fed eral agencies With regard to the 1985 bargaining by letter to the Respondent Employers dated July 9 1985 the Union notified them that the amount of health and welfare fund contributions required under the agreements was reduced by the trustees of the fund and the Union requested that the 7 cent per hour reduction be given to the employees as a general wage increase The record is silent as to whether any bargaining over this matter oc curred or whether any agreement was reached Section 8(d) does not prohibit a party to a col lective bargaining agreement from proposing a midterm modification to that agreement but rather provides that a party to a collective bargaining agreement may not be compelled either to discuss such proposed changes or to agree to them Con necticut Power Co 271 NLRB 766 (1984) The Board has held that any such proposal for midterm bargaining does not constitute a reopening of the collective bargaining agreement within the meaning of Section 8(d) Taylor Bus Service 284 NLRB 530 (1987) A & W Foods 276 NLRB 129 130-131 (1985) Herman Bros 273 NLRB 124 fn 1 (1984) Accordingly assuming arguendo that the events of 1985 bear on those of 1987 we find that the Union by virtue of its proposed modification of the collec tive bargaining agreement in 1985 did not become the initiating party desiring termination of the col lective bargaining agreement in 1987 We further find that the Union s April 24 letter to the state and Federal agencies does not establish that the Union was the initiating party Although the form language in the letter stated that the Union had reopened the agreements the letter also clearly stated that it was the Respondent Associa tion that had reopened the agreements and the Union attached the Respondent Associations Feb ruary 23 letter In the absence of any evidence on the record in any way suggesting that the Union had sent a notice to reopen the agreements prior to February 23 we are unwilling to ascribe control ling significance to the form language in the Unions letter Further the Unions letter in no way satisfies the Respondents obligations under Section 8(d) for the Board has held that the burden of notifying the mediation services of a dis pute under Section 8(d)(3) and (4) rests exclusive ly with the initiating party United Artists Commu nications 274 NLRB 75 77 (1985) For all these reasons we find that the Respond ents violated Section 8(a)(5) and (1) by locking out their employees without having given timely no tices to the Federal and state agencies as required by Section 8(d) i i A final issue which was not addressed by the judge remains The General Counsel alleges in the complaint that the Respondents violated Section 8(a)(5) and (1) of the Act by failing to furnish to the Union requested information that was relevant to the Union s function as the exclusive collective bargaining representative of the unit employees The Respondents admitted in their answer that at the June 16 negotiation meeting the Union request ed from the Respondents the following informa tion (1) copies of any Section 8(d)(3) notices sent by Respondent Association to the Federal Me diation and Conciliation Service and/or the Michigan Employment Relations Commission and (2) information regarding when any of the employer members of Respondent Association last employed employees in the bargaining unit classification of Wine Salesmen It is undisputed that this information was not fur nished to the Union until September 3 despite the Respondent Associations admission at the hearing that it had gathered all the information by July 9 12 In light of the fact that a lockout had oc 1 In light of this finding we find it unnecessary to pass on the alterna tlve contention of the General Counsel and the Charging Party that the lockout was unlawful because it was in support of a permissive subject of bargaining 1 2 The Respondents contend that as to the requested 8(d) notices the Union could have obtained them directly from the Federal and state agencies The Respondents however failed to establish on the record that the Union could have in fact obtained the notices in this manner 470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD curred and that the classification of wine sales men was admittedly within the bargaining unit we find that the information sought was clearly rel evant to the Union s representational functions and the 3 month delay in furnishing the information was unjustified B F Diamond Construction Co 163 NLRB 161 175-176 (1967) Accordingly we find the Respondents failure to timely provide the requested information violated Section 8(a)(5) and (1) of the Act 13 CONCLUSIONS OF LAW 1 By locking out their employees without having given timely notice to the appropriate Fed eral and state agencies as required by Section 8(d) of the Act and by failing to timely furnish to the Union requested information that was relevant to the Union s representational functions the Re spondents have violated Section 8(a)(5) and (1) of the Act 2 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that the Respondents have en gaged in and are engaging in unfair labor practices within the meaning of Section 8 (a)(5) and (1) of the Act, we shall order them to cease and desist and take affirmative action that is necessary to effectu ate the policies of the Act We shall order each Re spondent Employer along with the Respondent As sociation to make whole its respective employees for any loss of earnings and other benefits suffered as a result of the lockout from May 4 until May 11 1987 with backpay to be computed in the manner set forth in F W Woolworth Co 90 NLRB 289 (1950) plus interest as computed in New Horizons for the Retarded 14 ORDER The National Labor Relations Board orders that the Respondents Bi County Wholesale Beverage Distributors Labor Association Daniel L Jacob & Co d/b/a Jack Smith Beverages Try Me Distrib uting Company, and 0 & W Inc Ypsilanti and Ann Arbor Michigan their officers agents suc cessors and assigns shall 1 Cease and desist from (a) Locking out their employees without having given timely notice to the appropriate Federal and state agencies as required by Section 8(d) of the Act (b) Failing to timely furnish to the Union re quested information that is relevant to the Union s representational functions (c) In any like or related manner interfering with restraining or coercing employees in the ex ercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces nary to effectuate the policies of the Act (a) Make whole the employees for any loss of earnings and other benefits suffered as a result of the lockout from May 4 until May 11 1987 in the manner set forth in the remedy section of the deci sion Each Respondent Employer is responsible jointly and severally with the Respondent Associa tion for making whole its respective employees of fected by the lockout (b) Preserve and, on request make available to the Board or its agents for examination and copy ing all payroll records social security payment records timecards personnel records and reports and all other records necessary to analyze the amount of backpay due under the terms of this Order (c) Post at their facilities in Ypsilanti and Ann Arbor Michigan copies of the attached notice marked Appendix 15 Copies of the notice on forms provided by the Regional Director for Region 7 after being signed by the Respondent s authorized representative shall be posted by the Respondent immediately upon receipt and main tained for 60 consecutive days in conspicuous places including all places where notices to em ployees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply i 9 Inasmuch as the Respondents have now furnished the requested in formation to the Unions we will not include in the Order an affirmative provision requiring the Respondents to furnish the information 14 283 NLRB 1173 (1987) Interest will be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amend ment to 26 U S C § 6621 15 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Boa d shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board BI COUNTY BEVERAGE DISTRIBUTORS 471 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT lock out our employees without having given timely notice to the appropriate Fed eral and state agencies as required by Section 8(d) of the Act WE WILL NOT fail to timely furnish to the Union requested information that is relevant to the Union s representational functions WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act WE WILL make whole our employees for any loss of earnings and other benefits suffered as a result of the lockout from May 4 until May 11, 1987 with interest Each Employer listed below is responsible jointly and severally with the Associa tion, for making whole its respective employees of fected by the lockout BI COUNTY WHOLESALE BEVERAGE DISTRIBUTORS LABOR ASSOCIATION DANIEL L JACOB & CO D/B/A JACK SMITH BEVERAGES TRY ME DISTRIBUTING COMPANY O & W INC Charles Morris Esq for the General Counsel Daniel Hoekenga Esq of Southfield Michigan for the Respondent Samuel C McKnight Esq of Southfield Michigan for the Charging Party DECISION STATEMENT OF THE CASE LOWELL GOERLICH Administrative Law Judge The original charge filed in Case 7-CA-27065 by Local No 247 International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America AFL-CIO' (the Union) on 19 June 1987 was served on Respondent Bi County Wholesale Beverage Distributors Labor Associa tion2 (the Association) by certified mail on or about 19 ' On 1 November 1987 the Teamsters International Union was readmit ted to the AFL-CIO Accordingly the caption has been amended to re fleet that change 2 The name of the Respondent was amended at the hearing June 1987 The original charge in Case 7-CA-27145 filed by the Union on 16 July 1987 was served on Re spondent Daniel L Jacob & Co d/b/a Jack Smith Bev erages by certified mail on or about 16 July 1987 The original charge in Case 7-CA-27145(2) filed by the Union on 16 July 1987 was served on Respondent Try Me Distributing Company by certified mail on or about 16 July 1987 The original charge in Case 7-CA- 27145(3) filed by the Union on 16 July 1987 was served on Respondent 0 & W Inc on or about 16 July 1987 An order consolidating cases and complaint and notice of hearing were issued 29 July 1987 It was alleged in the complaint among other things that the Respondents had illegallly locked out their employees in violation of Sec tion 8(a)(1) and (5) and Section 8(d) of the National Labor Relations Act (the Act) The Respondents filed a timely answer denying that they had engaged in the unfair labor practices alleged A hearing was held on 4 and 5 November 1987 at De troit Michigan Each party was afforded a full opportu nity to be heard to call examine and cross examine wit nesses to argue orally on the record to submit proposed findings of fact and conclusions and to file briefs All briefs have been carefully considered On the entire record in this case and from my observa tion of the witnesses and their demeanor I make the fol lowing FINDINGS OF FACT CONCLUSIONS OF LAW AND REASONS THEREFOR I THE BUSINESS OF THE RESPONDENTS Respondent Jack Smith is and has been at all times material a corporation organized under and existing by virtue of the laws of the State of Michigan Respondent Try Me is and has been at all times mate rial a corporation organized under and existing by virtue of the laws of the State of Michigan Respondent 0 & W is and has been at all times mate rial a corporation organized under and existing by virtue of the laws of the State of Michigan At all times material Respondent Jack Smith has maintained its principal office and place of business at 546 North Mechanic Street Jackson Michigan (the Jackson facility) Respondent maintains other facilities in Ypsilanti and Adrian Michigan Respondent Jack Smith is and has been at all times material engaged in the wholesale sale and delivery of beer and related products Respondent Jack Smith s facility located at 3835 Morgan Road Ypsilanti Michigan is the only facility of Re spondent Jack Smith involved in this proceeding At all times material Respondent Try Me has main tamed its principal office and place of business at 334 South Wagner Road Ann Arbor Michigan (Try Me fa cility) Respondent Try Me is and has been at all times material engaged in the wholesale sale and delivery of beer and related products At all times material Respondent 0 & W has main tamed its principal office and place of business at 3974 Jackson Avenue Ann Arbor Michigan (the 0 & W fa cility) Respondent 0 & W is and has been at all times 472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD material engaged in the wholesale sale and delivery of beer and related products During the calendar year ending 31 December 1987 which period is representative of its operations during all times material Respondent Jack Smith in the course and conduct of its business operations described above pur chased and received at its Ypsilanti Michigan facility products goods and materials valued in excess of $50 000 directly from points outside the State of Michi gan During the calendar year ending 31 December 1987 which period is representative of its operations during all times material Respondent Try Me in the course and conduct of its business operations described above pur chased and received at its Ann Arbor Michigan facility products goods and materials valued in excess of $50 000 directly from points outside the State of Michi gan During the calendar year ending 31 December 1987 which period is representative of its operations during all times material Respondent 0 & W in the course and conduct of its business operations described above pur chased and received at its Ann Arbor Michigan facility products goods and materials valued in excess of $50 000 directly from points outside the State of Michi gan Respondent Jack Smith is now and has been at all times material an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act Re spondent Try Me is now and has been at all times mate rial an employer engaged in commerce within the mean ing of Section 2(2) (6) and (7) of the Act Respondent 0 & W is now and has been at all times material an em ployer engaged in commerce within the meaning of Sec tion 2(2) (6) and (7) of the Act Respondent Association has been an organization com posed of employers engaged in the wholesale sale and delivery of beer and wine and related products and which exists for the purpose inter alia of representing its employer members in negotiating and administering a collective bargaining agreement with the Charging Party At all times material Respondent Jack Smith Re spondent Try Me and Respondent 0 & W have been and are now employer members of Respondent Associa tion II THE LABOR ORGANIZATION INVOLVED The Union is and has been at all times material a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR PRACTICES First The threshold question involves the cessation of operations by the Operating Respondents3 from 4 to 11 May 1987 Prior to 4 May 1987 the Union had engaged in contract negotiations with the Association for a con tract but a settlement of the disputed issues had not been 3 Operating Respondents refer to the Respondents other than the Asso ciation reached by 4 May 1987 On 3 May 1987 the Association presented a final proposal that was to be deemed null and void if not accepted by the Union within 48 hours or by midnight 5 May 1987 Sometime prior to 4 May 1987 (the date is not clear in the record) the Operating Respondents posted a notice that in some aspects according to Hubert B Ryan chief negotiator for the Association was as follows At the present time we do not have a labor con tract with your Union In the absence of such agreement we are not willing to allow you to work When the new contract is agreed to between the Company and the Union you will be notified as to the date and time for reporting to work The notice resulted from discussions among the Re spondents that are detailed in the following testimony Marshall Lawrence Howrigon Jr operations manager for Jack Smith Beverage explained how the work cessa tion came about I d say two weeks prior to the actual lockout we had experienced an extreme increase in sales to the point that the demand on overtime on our ware house crew was extreme We had accounts calling us and again one of the biggest ones was Meyers Thrifty Acres and Al Burns was another one that called us too with great concern to the point of saying that they wanted extra beer there to cover because of the fact that drivers were telling them that there was going to be a strike so therefore our accounts we cannot dictate their inventory levels We fulfilled the orders and had a great-our over time was really large during that time and so there fore when we reviewed it we had an awful large amount of inventory out in the field and the majori ty of our people would have hardly drawn guaran tee the following week if the strike had occurred so therefore we agreed that the lockout should be put in Douglas William Wanly vice president of operations of 0 & W Inc confirmed that a dramatic increase of sales had been experienced to the point where fully an other week s worth of inventory now resided in our retail accounts as opposed to our warehouse and that there were many reports from our customers that they had been informed there would be a strike I reviewed in that meeting with my colleagues and competitors prior violence that we had experienced at 0 & W4 and were concerned a bit about letting our employees return James H Chaconas general manager of Try Me tests feed that Try Me had experienced an increase of sales and he had heard rumors of a strike Chaconas also testa feed that because of prior strike violence he was afraid for the equipment 4In the 1984 strike there had been violence according to Hugh M Wanty { BI COUNTY BEVERAGE DISTRIBUTORS Ryan testified that the shutdown resulted from the Re spondent s desire not to be fixed with a surprise strike and any potential sabotage as well as to allow the hiatus to dissipate extra surplus of product in the market place Ryan explained why the shutdown was ended Well by the end of this period of time the imbal ance in the supply that is to say the extra amount of beer that the employees had delivered during the week before the lockout had dissipated We were beginning to receive requests from our customers to begin resupplying them with products Some of our-most of our fears I quess we would say about what might have occurred during that point in time had in fact not occurred and it was our conclusion that we might as well have the employees back to work if they were willing to work and to continue to negotiate Choconas testified We had a lot of calls from cus tomers There was no picketing that we were afraid of There was no violence and I decided to go back to buss ness From the foregoing credited testimony and an exami nation of the credible record as a whole it may be con 473 cluded as urged by the General Counsel that the shut down of the Respondents operations was an effort to gain a collective bargaining advantage for the Respond ents over the Union From a readng of American Ship Building Co v NLRB 380 U S 300 307-308 (1965) it would appear that a lockout as contemplated by the Act is the tem porary layoff of employees solely as a means to bring economic pressure to bear in support of an employer s bargaining position after an impasse has been reached Thus the Supreme Court states No one would deny that an employer is free to shut down his enterprise tem poranly for reasons of renovation or lack of profitable work unrelated to his collective bargaining situation (Em phases added ) It seems clear in the instant case that the temporary shutdown was for the purpose of avoiding an unprofit able period of work resulting from lack of customer orders and anticipated losses evolving from probable strike violence As in the case of Armour Oil Co 253 NLRB 1104 (1981) the Respondents conduct here did not constitute a lockout [Recommended Order for dismissal omitted from pub lication ]