Botsford Concrete Co., Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1970

185 N.L.R.B. 804 (N.L.R.B. 1970)

804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Botsford Concrete Co., Inc ., Clayco Concrete Co.,
Concrete Materials, Inc., Dusselier Bros. Ready
Mix Co ., Fordyce Concrete , Lone Star Cement
Corp ., Mo-Kan Concrete Co., Olathe Ready Mix
Concrete Co., Smith Bros . Ready-Mix Concrete
Co., Stewart Sand & Material Co. and Heavy
Construction Laborers Local No . 663, affiliated
with International Hodcarriers , Building and
Common Laborers Union of America , AFL-CIO.
Cases 17-CA-3913, 17-CA3914, 17-CA-3915,
17-CA-3916, 17-CA-3917, 17-CA-3918,
17-CA-3919, 17-CA-3920, 17-CA-3921, and
17-CA-3922
September 30, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
On May 11, 1970, Trial Examiner James V. Con-
stantine issued his Decision in the above-entitled pro-
ceeding, finding that Respondents had not engaged
in certain unfair labor practices and recommending
that the complaint be dismissed in its entirety, as
set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel and the Charging
Party filed exceptions to the Trial Examiner's Decision
and briefs in support of their exceptions. Respondents
filed a joint brief in support of the Trial Examiner's
Decision and Stewart Sand & Material Co. filed
a brief in answer to General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings. of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner, as modified below.
We hold, in agreement with the Trial Examiner,
that the Respondents herein did not violate Section
8(a)(1) and (3) of the Act by shutting down their
operations on or about April 11 or 12, 1969. The
Trial Examiner found such action was not tainted
by antiunion motivation. Rather, he found that
Respondents acted to minimize, or eliminate, opera-
tional losses caused by the general strike of Painters
185 NLRB No. 113
District Council No. 3 and Iron Workers Local No.
10. We agree . In these circumstances , we find it
unnecessary to pass upon the Trial Examiner 's other
independent reasons for not finding the shutdown
or lockout violative of the Act. Accordingly, we shall
dismiss the complaint herein in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby adopts as its Order the Recom-
mended Order of the Trial Examiner, and orders
that the complaint herein be, and it hereby is, dis-
missed.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Trial Examiner : This is a con-
solidated unfair labor practice case commenced under Sec-
tion 10(b) of the National Labor Relations Act, herein
called the Act. 29 U S C 160(b). Originally it consisted
of 10 separate cases (17-CA-3913 to and including 17-
CA-3922) which were combined for the purpose of trial
At the beginning of the trial , Mo-Kan Concrete Co., the
Respondent in Case 17-CA-3919, was removed as a party
and the complaint was dropped as to it because the parties
thereto had previously reached a settlement approved by
the Regional Director for the Region 17.
The remaining Respondents were named as individual
Respondents in nine separate charges. These charges were
all filed by Heavy Construction Laborers Local No. 663,
affiliated with International Hodcarriers , Building, and
Common Laborers Union of America , ALF-CIO, herein
called the Union . Such charges were filed on May 15,
1969, as follows:
1. Against Botsford Concrete Co., Case 17-CA-3913.
2. Against Clayco Concrete Co., Case 17-CA-3914.
3. Against Concrete Materials , Inc. Case 17-CA-3915.
4. Against Dusselier Bros. Ready Mix Co., Case 17-
CA-3916.
5. Against Fordyce Concrete , Case 17-CA-3917.
6. Against Lone Star Cement Corp Case 17-CA-
3918.
7 Against Olathe Ready Mix Concrete Co., Case
17-CA-3920
8. Against Smith Bros. Ready-Mix Concrete Co., Case
17-CA-3921
9. Against Stewart Sand & Material Co ., Case 17-
CA-3922.
On December 31, 1969 , the General Counsel of the
National Labor Relations Board , herein called the Board,
through the Regional Director of Region 17 (Kansas City,
Missouri), consolidated said cases and issued a consolidated
complaint based upon said charges. In essence said complaint
alleges that Respondents have violated Section 8 (a)(1) and
(3), and that such conduct affects commerce within the
BOTSFORD CONCRETE CO, INC 805
meaning of Section 2(6) and (7), of the Act. Respondents
have jointly answered As amended, their joint answer
admits some facts but denies that Respondent committed
any unfair labor practices
Pursuant to due notice the consolidated case came on
to be heard, and was tried before me, at Kansas City,
Missouri, on March 16, 17, and 18, 1970. All parties
were represented at and participated in the trial and had
full opportunity to introduce evidence, examine and cross-
examine witnesses, file briefs, and argue orally Except
for the Union, each party to this proceeding has filed
a brief
At the opening of the hearing Respondents renewed
motions to dismiss and requested "to make a statement
of position and offer of proof on the record in support
of those motions to dismiss at this time." This attempt
to renew said motions was not entertained by me, on
the ground that said motions had been passed on and
denied by another Trial Examiner and I would not review
his rulings heretofore made. See Mid-West Towel & Linen
Service, Inc., 143 NLRB 744, 745, affd. on other grounds
339 F.2d 958 (C.A 7) Respondents moved to dismiss
when the General Counsel and the Union rested and again
at the close of the case These motions were denied on
the ground that a prima facie case had been established.
In the absence of objection thereto the motion of Respond-
ents "To Correct Transcript" is hereby granted.
This consolidated case presents the issue of whether
Respondents unlawfully temporarily locked out their
employees and refused to reinstate them and make them
whole for loss of earnings caused by said temporary lockout.
Upon the entire record in this case, and from my observa-
tion of the witnesses, I make the following-
FINDINGS OF FACT
I AS TO JURISDICTION
Respondents, and each of them, are engaged in manufac-
turing, selling , and distributing concrete and related mate-
rials, and at all times material herein have been participating
members of Builders' Association of Kansas City, herein
called the Association. Said Association is a voluntary
membership group of employers engaged in, connected with,
or interested in various phases of the building and construc-
tion industries and related businesses in the Greater Kansas
City, Missouri, area
Among other purposes said Association represents its
participating members in collective bargaining on a multiem-
ployer basis with various labor organizations, including
the Union. Annually the participating members of the Asso-
ciation transact business valued in excess of $ 1 million
of which more than $100,000 is derived from States other
than those in which their principal places of business are
located. During the same period such members receive
goods, materials, and products valued in excess of $100,000
directly from States other than those in which they do
business.
I find that Respondents, and each of them, at all times
material have been and are employers engaged in commeice
within the meaning of Section 2(6) and (7) of the Act.
ii. THE LABOR ORGANIZATION INVOLVED
The Union and all other unions described below as
having collective-bargaining contracts with the Association
are labor organizations within the meaning of Section 2(5)
of the Act.
III THE UNFAIR LABOR PRACTICES
A. General Counsel's Evidence
The evidence recited under this subsection is taken not
only from the testimony of the General Counsel' s witnesses
but also from exhibits received into evidence as Joint Party
Exhibits and admissions in the joint answer of Respondents.
Respondents are engaged in manufacturing and processing
ready-mix concrete at various plants located in the Greater
Kansas City area "Batch plants" operated by Respondents
prepare ready-mix concrete from component materials and
funnel said concrete into specially constructed trucks. Such
trucks deliver the ready-mix concrete to building construc-
tion jobsites. But Respondents employ no members of Paint-
ers or Iron Workers in connection with any of their opera-
tions.
As noted above Respondents are members of the
Association. Another member is Home Builders' Association
of Kansas City All Respondents also belong to this latter
association. The Association represents its members, includ-
ing Home Builders' Association , in labor relations with
the building and construction industry trade unions and
in negotiating and administering collective bargaining agree-
ments with such unions. The Builders Association has
had contractual relations for several years with the Union
and Local 1290 of Laborers , as well as with Local 101
of the Operating Engineers, Teamsters Local 541, and a
Laborers District Council in which the Union is a member,
with respect to Respondents . All Respondents were at
all times material also members of said Home Builders'
Association. The Association also has had contractual rela-
tions with Painters and Ironworkers with respect to some
members other than Respondents
On April 1, 1965, the Association executed a 3-year
collective-bargaining agreement with the Union and with
Local 1290 of the Laborers covering employees of concrete
plants "within the jurisdiction of the respective parties "
On April 1, 1966, the Association executed a 5-year contract
with Teamsters Local No 541 covering members of said
Local employed by employer members of the Association.
On April 1, 1968, the Association also negotiated a 3-
year contract with Operating Engineers Local No. 101.
All the above contracts were negotiated on behalf of the
Association 's members. All of the foregoing contracts con-
tain a clause substantially protecting employee members
of said unions who refuse to cross any picket line. See
Article V, Joint Party Exhibit 2; Article VI (14), Joint
Party Exhibit 3; and Article VIII, Joint Party Exhibit
4.
The Association also executed separate contracts with
Local 10 of the Iron Workers and Painters District Council
No. 3 These contracts expired March 31, 1969. New agree-
ments were signed in July, 1969 , with these two labor
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizations Since none of Respondents employed Painters
or Iron Workers said Respondents did not become parties
to the above expired or the new, 1969, contracts
Iron Workers Local 10 , Laborers Locals No 663 and
No 1290 , Operating Engineers Local 101 , and Painters
District Council No 3, as well as other labor organizations,
are members of Building and Construction Trades Council
of Greater Kansas City.
On April 1 , 1969, Painters District Council No. 3 and
Iron Workers No. 10, and their members, engaged in a
strike against "all contractor-employers of the Home Build-
ers' Association and the Builders Association " and contin-
ued the same until new contracts were negotiated in July,
1969.
Beginning April 1, 1969, and continuing thereafter, Iron
Workers Local 10 and Painters District Council No. 3
picketed various employers as enumerated in Respondent's
Exhibit 1 , and on the dates there specified . However, dispute
exists whether they picketed Stewart Sand & Materials
Co., one of the Respondents herein . At the jobsites where
such picketing occurred , Local 101 of the Operating Engi-
neers, Teamsters Local No. 541, and other unions affiliated
with said Building and Construction Trades Council "ref-
used to cross such picket lines to perform their normal
construction project duties."
Members of Laborers Locals 663 and 1290 are generally
not employed by home builders but, instead , are employed
by heavy construction contractors represented by the Heavy
Construction Contractors Association . Employer members
of the latter association are engaged in the business of
constructing highways , bridges, sewers , rights-of-way, "and
similar heavy construction."
Beginning April 4 to 7, Home Builders and General
Contractors , who were members of the Association, were
directed by the Builders' Association and the Home Builders
Association to lock out, and did lock out , their construction
industry employees , who were almost exclusively members
of the unions which compose the Building and Construction
Trades Council of Kansas City, and Teamsters Local 541.
Also on March 31, 1969 , collective -bargaining agreement
between the Lumber Yard Dealers Ass(ciation , composed
of 33 of 36 area lumber yard compani 's, and Teamster
Local 541 expired, and Teamster Local 541 struck and
picketed at the sites of the lumber yard; involved. The
Lumber Yard Dealers Association, and its members, were
not and are not represented by the Builders' Association
in labor negotiations.
Respondents herein employ as ready-mix concrete truck-
drivers exclusively members of Teamsters Local 541 and
all Respondents have a varying number of Teamsters 541
drivers which they employ at various times as truckdrivers.
All of the Respondents herein employ at least one, and
sometimes two or three , employees represented by Operating
Engineers Local No . 101 as "batch men," "plant operators,"
or "machine operators" at each of the ready -mix batch
plants described above.
Each of the Respondents (except Olathe Ready Mix,
which is automated) employs members of Laborers Local
663 (if the plant is located in Missouri ) or members of
Laborers Local 1290 (if the plant is located in Kansas)
at some or all of its batch plants , depending upon the
degree of automation.
Evidence narrated up to this point has been derived
from documents admitted as Joint Party Exhibits and admis-
sions in the answer . Oral evidence adduced by the General
Counsel and the Charging Party is substantially reproduced
in the ensuing paragraphs.
William J . Chambers is the president and owner of
Mo-Kan Concrete Co. It is a member of Builders ' Associa-
tion of Kansas City, and was a Respondent in this case.
A conspectus of his testimony follows:
Painters and Iron Workers called a strike. Not long
thereafter Chambers met with Bud Sutherland , Donald
Ong, and several home builders at the Glenwood Manor
Motel . Sutherland and Ong "are directly in the Association"
and also in the Home Builders Association Ong also at
that time was chairman of the Association's Labor Commit-
tee. (Article IX and XII of the Association 's By Laws
provide, inter alia, that said Labor Committee is invested
with authority to enter into collective bargaining agreements
"binding on the members of the Association," and to "deter-
mine the Labor Policy of the Association ." See Joint Party
Exh. 1).
Three or four days later Ong, accompanied by four-
others, called at the office of Chambers. Ong asked Cham-
bers if the latter would shut down "so they could get
the strike over quicker . . so the Builders Association
could get the settlement."
Ong next spoke to Chambers on this subject in mid-
April 1969 Again asking Chambers to shut down, Ong
added that if Chambers did not do so, "some of the
other plants were going to open back up." Ong also men-
tioned that Olathe Ready Mix Concrete Co., one of the
Respondents herein , which had shut down , "was getting
nervous." Three or four days later Chambers did stop
operating one of his plants.
After this Ong invited Chambers to a meeting held
at Richard Mice 's house. Chambers did go. In addition
to Ong, several others were present . Ong forbade those
present from "coming up to 151 Street any more because
Olathe Ready Mix is going to open "
About May 26, 1969, Chambers resumed operating his
closed plant. On May 28 he was requested to attend a
meeting of the Labor Committee of the Association. He
went to that meeting accompanied by his attorney. While
there Chambers was told "to shut back down . . so
they could get the negotiations over with the labor organiza-
tions, get them settled " with Iron Workers and Painters.
Replying that he could not afford to shut down , Chambers
continued to run his plant. Soon thereafter the Association
obtained an injunction enjoining Chambers from working
his said plant. About June 26, 1969 , Chambers again opened
his plant.
Prior to shutting down the first time Chambers employed
9 or 10 full-time truckdrivers ; and he employed the same
number just before closing his plant the second time These
9 or 10 compose his normal complement of truckdrivers
Each time he operated immediately preceding the above
two closings Chambers was delivering more concrete than
usual -
BOTSFORD CONCRETE CO., INC 807
A. F. Kuhn , another witness for the General Counsel,
is business representative for Hoisting Engineers . He testified
essentially as follows. Several days following the shutdown
(which occurred within a few days of April 9, 1969),
of Stewart Sand' & Material Co ., one of the Respondents
in this case , Kuhn spoke to Herb Meagher , Stewart Sand's
general superintendent . Kuhn commented that he wanted
to keep the concrete plant open so that "his people,"
i.e, Hoisting Engineers , could continue to work . Meagher
replied that he could not accommodate Kuhn in this respect
because the Association had told Meagher to shut down.
At that time concrete was being delivered to the Greater
Kansas City area from concrete plants located in Blue
Springs, Bates City, and Excelsior Springs, Missouri, and
Bonner Springs , Kansas.
When Kuhn spoke to Meagher on the foregoing occasion,
Stewart Sand was actually employing some members of
Hoisting Engineers However, these employees did not pour
concrete but rather were engaged in maintenance work.
Williard Wilkinsen , president and business manager of
the Union , also testified . An abridgment of his testimony
may be narrated as follows. His Union , Local 663, has
represented employees of the Respondent companies.
(Although he enumerated eight of them , for some reason
he did not mention Respondent Fordyce Concrete.) Article
X of the Union 's contract with the Association contains
a provision that "There shall be no stoppage of work
or lockout on account of any differences which may occur
between a member or members of the Association and
the Union ." See Joint Party Exhibit 2
Between April 8 and 11 , 1969, each of the Respondents
ceased producing concrete. Wilkinsen discussed this situa-
tion with Bill Hutton , managing director of the Association.
Among other things Hutton remarked during this conversa-
tion that "We have to close them down and get this
strike settled" as to Iron Workers and Painters.
Article V of said Joint Party Exhibit 2 recited that
"It shall not constitute a breach of this Agreement for
any employee to refuse to cross any picket line and perform
work in any instance."
Finally , the parties stipulated that there was a cessation
or shut down of operations by Respondents , although its
cause is in controversy.
B. Respondent 's Evidence
Herbert Meagher is vice president of Stewart Sand &
Material Co. His testimony in substance is set forth in
the ensuing paragraphs . On April 1, 1969, Stewart Sand
operated ready-mix plants in Kansas City, Lee's Summit,
and Pixley , Missouri, and Merriam , Kansas. The Kansas
City plant is by far the largest of these. Such plants take
components of rock, sand, cement , and water and by weight
drop them into concrete as they deliver it to jobsites
Stewart Sand , a member of the Association , employs truck-
drivers represented by Teamsters Local 541, engineers repre-
sented by Hoisting Engineers , Local 101; and laborers repre-
sented in Missouri by the Union, the Charging Party herein,
and by Laborers Local 1290 in Kansas These unions have
collective-bargaining contracts with the Association.
Four groups of businesses purchase ready-mix concrete
from Stewart Sand - heavy contractors , home building con-
tractors , commercial builders or general contractors, and
c o.d persons or individuals who do their own constructing.
Very little (about 5 percent) ready-mix concrete is sold
to said c.o d. individuals ; the great bulk is sold to the
other three groups in about equal volume, i.e., a little
less than one-third of total production to each At the
jobsite preliminary preparatory work is performed by the
contractor 's employees before Stewart Sand 's trucks can
discharge their loads of cement . Such preliminary work
is done by hoisting engineers , iron workers, laborers, and
carpenters . Among other things, such laborers assist in
unloading the ready -mix trucks of Stewart Sand.
On April 2, 1969, Meagher visited Stewart Sand 's plant
at Kansas City, only to find that it was being picketed
with signs bearing the legend that "Stewart Sand Co. violated
area standards ." These signs designated the union authoriz-
ing the picketing as Local Council No 3, Painters Union
49th and Prospect . Notwithstanding such picketing, all
Stewart Sand employees except one, "the union steward,"
employed by it, continued to work that day.
When Meagher again visited said Kansas City plant
on the next 2 days he found the picketing still going
on each day . However , none of Stewart Sand 's employees
worked those 2 days, as they refused to cross the picket
line. On April 3, the next day, Meagher spoke to Burchett,
the Teamster steward and an employee at said plant , asking
the latter "if he could do anything about the picketing
situation ." Replying, Burchett asserted that the Teamsters
considered this as "a legal picket" line, so that Teamster
drivers could not cross it. Nevertheless Burchett on that
occasion sought to reach the business agent of the Painters
by telephone , but without success.
On April 4 pickets were also placed at the other three
plants of Stewart Sand. When Meagher went to Stewart
Sand 's Merriam plant he found that no Stewart Sand
employees were working there, although the Company had
not given orders to them to remain away from their jobs.
In fact "we [Meagher ] were trying to get them to come
to work "
Until this time the Company had planned to maintain
delivery of ready-mix concrete to its customers, one of
whom was "a heavy contractor by the name of Tobin."
However , when the Kansas City plant closed down, such
deliveries could not be made to Tobin from the other
three plants of Stewart Sand because Stewart's weighing
machines had not been inspected and certified by the State.
Such certificate is a condition precedent to delivering con-
crete to a state highway construction project . Tobin was
the contractor on such a project
On the afternoon of April 4, 1969, Meagher spoke to
Willard Wilkinsen , the president and business manager
of the Union. During the course of this conversation Wilkin-
sen mentioned that, being desirous of having "his people
go back to work," he spoke to the Painters and "tried
to talk sense into them ," but without success Continuing,
he assured Meagher that if the latter "would call them
in, the [the laborers ] would go through the picket line "
Complying with this request Meagher asked Stewart Sand's
laborers to report to work on April 5. Although they
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did show up on that date, they were directed to perform
only maintenance work They did not perform any regular
duties directly associated with the ready-mix operation.
Meagher called the Hoisting Engineers on April 4. They
stated that their members "would' come through the picket
lines" at Stewart Sand if called to work by the latter
Meagher did call them, and they did report for work.
Like the laborers, the hoisting engineers performed only
maintenance work.
As a result of Stewart Sand's -employees refusing to
work on April 4 and 5, Tobin, the contractor, was unable
to receive ready-mix concrete for his highway jobs Because
Tobin thereby became "highly excited," Respondent imme-
diately sold him some ready-mix trucks so that he could
prepare his own concrete for the highway job.
Picketing by the Painters was resumed on Monday, April
7. It was repeated on April 8 and 9 Although Stewart
Sand's hoisting engineers and laborers came in to work
on these 3 days, its teamsters would not cross the picket
line However, such engineers and laborers were engaged
only in maintenance work.
While picketing occurred at the Kansas City plant on
April 1, 2, and 3, the three other plants continued to
operate and made deliveries to customers during this period.
However, Painters and Ironworkers picketed several such
customers on April 1, 2, and 3, so that Stewart Sand
"couldn't get concrete to them " In fact, during that period
Stewart Sand was able to deliver concrete to but three
customers. Further, because Stewart Sand was unable to
tell which of its customers would be picketed, or when,
it was unable to determine how many drivers to retain
each day to make deliveries In fact, picketing of a customer
sometimes did not take place until after a Stewart Sand
truck had started to proceed to there, so that such deliveries
"had to be diverted somewhere else." This is because Stewart
Sand's truckdrivers refused to cross such picket lines.
Beginning April 10, and for several weeks thereafter,
Stewart Sand "had no orders on [its] books other than
an occasional c.o d. or private individuals." During this
period Stewart Sand employed hoisting engineers and labor-
ers, but only to perform work in connection with tearing
down two of its old plants.
Stewart Sand resumed production of ready-mix concrete
in July 1969, immediately after the strikes of Painters
and Iron Workers were settled From about April 10 until
that time there were no customer orders which justified
operating its plants to produce ready-mix concrete. This
is because it is necessary to "be running at 75 percent
[of capacity] in order to make it worthwhile to open up";
and from April 10 to July 1969, Stewart Sand would
not be able to attain said 75 percent. It is true that in
wintertime production is maintained at far less than 75
percent but, according to Meagher, the number of drivers
hired during such a period is greatly reduced. Further,
winter production is continued, even though at less than
75 percent of capacity, solely to serve customers who provide
the bulk of business in warm seasons and to be sure
not to lose these valuable customers during the warm
months.
On cross-examination Meagher testified that one-third
of Stewart Sand's volume of business came from heavy
constructors, and that such customers were not on strike.
He further testified on cross that Stewart Sand's Kansas
City plant was picketed for but a week, i e., from April
2 to 9. At some time after said picketing commenced
Stewart Sand determined not to continue producing cement
until the strike ended. However, the Association did not
request or direct Stewart Sand to arrive at such a decision.
William Kahn is plant manager of Stewart Sand & Mate-
rial Co His testimony may be condensed as follows. In
early April 1969, Stewart Sand's Pixley plant was picketed
by the Painters . When Kahn's truckdnvers arrived there
they refused to report for work "until they checked with
their business agent or their union " This caused Kahn
to speak to the Teamster Stewart at the plant, Ralph Proctor,
"about the picket line." Replying, Proctor informed Kahn
that "it was an authorized picket" and that therefore "the
men shouldn't go to work."
On April 4, 1969, President Richard F Ladd of Stewart
Sand & Material Co, called President Richardson of the
Painters Union regarding the picketing of Stewart Sand
by Painters. When Ladd asked why the Painters were
picketing at Stewart Sand, Richardson merely asked "Aren't
you a member of the Labor Committee" of the Association?
(In fact, Ladd was a member of this committee at that
time) Continuing, Richardson mentioned that Stewart Sand
also belonged to the Association. Concluding this conversa-
tion , Richardson referred Ladd to a Mr Stewart , a business
agent of Painters.
Later on April 4 Richardson telephoned to Ladd com-
plaining that Ladd's employees were doing some painting
at the plant and that this work belonged to members
of Richardson's union. Ladd replied that "we were operating
under the practice" whereby maintenance work was per-
formed by members of the unions which Ladd recognized,
i e , Teamsters, Laborers, and Hoisting Engineers, and that
Richardson should submit his said complaint to those
unions.
In the evening of April 4 Business Agent Stewart of
the Painters telephoned Ladd. After mentioning that he,
Stewart, authorized the picketing of Ladd's plant, Stewart
remarked that such picketing would cease if Ladd signed
a contract with the Painters covering painting work At
no time material had Ladd's plant used members of, recog-
nized, or had contractual relations with, Painters.
As a result of the picketing by Painters of Stewart
Sand, Ladd called Hutton of the Association and requested
the assistance of the Association. And on April 3 Ladd
telegraphed Painters threatening to sue it for damage caused
by said picketing. See Respondent's Exhibit 2.
Another witness for Respondent is Dennis Cash, general
manager of a division of Lone Star Cement Corp The
substance of his testimony follows. Lone Star operates
two plants in Kansas City one at Third and Bunker Streets
and another in the Centropolis area. It employs members
of Local 101, Hoisting Engineers, Teamsters 541, and Locals
663 and 1290, Laborers Its volume of business is divided
as follows. 20 percent from general contractors, 50 percent
from residential contractors, 20 percent from heavy contrac-
tors, and 10 percent from "miscellaneous purposes" contrac-
tors. Although about April 9, 1969, it "discontinued" ready-
mix operations, Lone Star continued to employ members
BOTSFORD CONCRETE CO, INC 809
of said unions in general maintenance work , including
maintenance painting during such shut down.
Operations at Lone Star's said plants had been "quite
unsettled" after April 1, 1969, because the strike of Painters
and Ironworkers caused many customers of Lone Star
to close down operations. This cessation, of operations by
its customers so diminished demand that it became unprofi-
table for Lone Star to continue to produce ready-mix con-
crete, i e , Lone Star's business was down to about 15
percent of normal Also, the Association recommended
that its members producing ready-mix concrete shut down
because "a complete shutdown" was expected of those
customers who used ready-mix concrete by the strike of
Painters and Ironworkers. Hence the shut down of such
customers would reduce shipments to other customers to
"a minimum amount of business " The Association further
recommended that "it would be to the interest of " Lone
Star and other members thereof "to close until resumption
of normal construction."
Donald Ong is president of Ong Building Corporation,
a home building contractor and a member of Home Builders
Association of Greater Kansas City Said Home Builders
Association is a member of Builders Association of Kansas
City, heretofore and hereafter mentioned as the Association
Ong is chairman of the Association's Labor Committee.
The Association negotiates collective bargaining agreements
for Ong Corp. with various unions, including Painters and
Ironworkers. Contracts with the latter two labor organiza-
tions expired on March 31, 1969.
Ong was informed by Painters and Ironworkers immedi-
ately prior to said March 31 "no contract, no work,"
but they refused to disclose whether they would picket
in case of a strike. Consequently, the Association on April
1, 1969, mailed to its members a bulletin. This is a notice
informing them of a strike by these two unions. It also
suggests , among other things, that such members "continue
to work all other trades"; and that, if either Painters
or Ironworkers pickets, "the Association may have to change
its policy." See Respondent's Exhibit 3.
Beginning April 1, 1969, Painters and Ironworkers struck
those members of the Association which had contracts
with them The strike was called at 9 or 10 a in. On
that day pickets appeared at Ong's plant As a result
all crafts except carpenters, teamsters, and laborers left
the jobs These latter three crafts were informed not to
return to work the next day if the picketing resumed
on said day. In all, 38 other members of the Association
were picketed on April 1.
During the week of April 1 Ong learned that pickets
of Painters were picketing all locations of Stewart Sand
& Material Co. So Ong spoke to Bill Richardson of Painters
within a day or two. Richardson defended the picketing
at Stewart Sand by insisting that Stewart was performing
painting work with employees who belonged to unions
other than Painters, and that Painters claimed this work
About April 9 or 10 the Labor Committee of the Associa-
tion met with representatives of ready-mix producing mem-
bers of the Association. Stewart Sand, which had a represent-
ative present, asked for "some response and cooperation
from the other Ready-Mix Producers to continue to with-
stand the Painters' demand to sign an independent labor
agreement." Those at said meeting also discussed the "trickle
of orders" for ready-mix cement attributable to the strike
of Painters and Ironworkers, and the "severe problems"
arising from "the picketing being conducted on a hit-
and-run basis . Concrete was dispatched , in some instances,
to jobsites where no pickets were present . By the time
Ready-Mix drivers arrived, [picketing took place by] Paint-
ers and Ironworkers . . . and there was no way of
disposing of the concrete."
About April 8 or 9 the Association held a meeting
to discuss the strike. Through oversight Mo-Kan Concrete
Co. was not invited to this meeting However, in mid-
April Ong recited to Chambers of Mo-Kan the decisions
made at said meeting, i.e, that the other ready-mix produc-
ers determined to close their operations in view of "the
uneconomic conditions which prevailed . . and the picket
which Stewart Sand had . . " In the same conversation
Ong requested Chambers to "co-operate with the rest of
the industry in this manner." Chambers agreed and did
shut down for a while
On May 28 Chambers, president and owner of Mo-
Kan Concrete Co, met with some members of the Associa-
tion in the office of William Hutton, the latter's managing
director Ong was also present. Chambers requested those
present for permission to reopen his ready-mix plant at
Olathe
Finally, Ong testified that the Association by memo
dated April 22, 1969, advised its members "it is the opinion
of your Labor Committee that we should keep the [ready-
mix concrete] industry down and not resume any work
under any circumstances until complete industry -wide settle-
ments are reached" with Ironworkers and Painters. This
was recommended because "the industry is about 95%
shut down." See Union Exhibit 1.
One of the Respondents in this case is Botsford Concrete
Co., Inc Its manager is Harry Lutz, who testified substan-
tially as follows. Botsford's customers by volume are com-
mercial contractors, 30 percent; residential contractors, 35
percent; industrial contractors, 5 percent; heavy contractors,
20 percent; and miscellaneous contractors and individuals,
10 percent. It employs members of Teamsters, Laborers,
and Hoisting Engineers.
During normal times orders for ready-mix concrete are
received a day or two in advance, so that the number
of drivers necessary to deliver concrete can be ascertained
at the beginning of each workday. However, in the first
week of April, 1969, several contractors using Botsford's
concrete were picketed. Such picket lines were honored
by Botsford's drivers, with the result that "the load [to
such places] was returned to [Botsford's] plant " By April
11 Botsford was hauling but about 350 or 400 yards of
concrete, which is approximately 20 percent of its normal
producticn Much of this reduction from normal ensued
because customers were cancelling orders as a strike had
shut them down.
In fact in early April "the calls [for concrete] were
few and far between They vaned from a do-it-yourselfer
wanting three yards . up to 10 or 20 yards at some
remote location. It was sporadic." Accordingly, it was
"definitely not profitable" to remain open and do business
under such circumstances. Consequently Botsford shut down
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operations. Nevertheless it employed a few teamsters and
hoisting engineers and a laborer during such shut down
to perform maintenance work. Such maintenance duties
are part of their regular tasks at all times.
On cross-examination Lutz asserted that the strike did
not affect Botsford's industrial or heavy contractors. Howev-
er, it would be unprofitable to remain in business solely
to serve them because their volume was so low "there
was not a prayer of serving them economically " He also
testified on cross that Botsford did some business in winter;
but volume was low in that period Although this winter
production was unprofitable, it was necessitated by a desire
to serve and thus retain customers requiring a large volume
in the warm months. Failure to take care of such customers
in winter could cause them to stop doing business with
Botsford. Further, the number of employees utilized in
such winter months is greatly reduced, so that the operating
loss is kept at a minimum.
Smith Bros. Ready-Mix Concrete Co., a corporation,
is owned by Minor Smith, who testified for Respondents.
In substance Smith's testimony discloses that: Smith, who
is also president of this corporation, employs members
of Laborers Local 663, Teamsters, and Hoisting Engineers.
Eighty to 90 percent of Smith's ready-mix concrete is
sold to home building contractors' about 10 percent is
sold to individual "do-it-yourselfers", and roughly 5 percent
to commercial contractors.
During the first week of April 1969, many of the home
building contractors whom Smith serviced were struck and
picketed, and some of these cancelled "orders scheduled
to be delivered." In addition, Smith truckdrivers dispatched
to sites where no picketing was going on at the time
they were sent on one occasion found pickets there by
the time the trucks arrived In such instance Smith's truck-
drivers refused to cross the picket line and returned without
delivering their loads.
By April I 1 so many of Smith's home building customers
had shut down, and Smith's deliveries had become a trickle
on that day, that Smith stopped producing ready-mix con-
crete thereafter until the strike at said customers ended.
Although Smith operates in winter "if the weather is
permissible," he does so on a much lesser scale.
The treasurer of Fordyce Concrete is William A Rush.
An abridgment of his testimony follows Fordyce sells about
60 percent of its ready-mix concrete to general contractors,
approximately 30 percent to home building contractors,
and roughly 10 percent to heavy contractors . Between
April 1 and 9, 1969, a large number of Fordyce's customers
"were struck, picketed, or shut down." A list of its customers
as of this period appears in Respondent's Exhibit 8. Five
of them were picketed. However, after April 9, Fordyce
was unable to continue delivering to customers until "after
the strike was settled" because "the greater majority of
them were shut down." This is because it was economically
unsatisfactory to operate. Those enumerated in said Exhibit
8 bought slightly over 80 percent of Fordyce's output
between April 1 and 9
Although Fordyce had orders from the above contractors,
the greater majority, as noted above, canceled their orders
in the period between April 1 and 9. However, not all
cancellations were caused by the strike. In fact, the heavy
contractors were not struck. These cancellations diminished
total volume to a point where it became unprofitable for
Fordyce to serve such other customers who had not shut
down Accordingly, Fordyce closed down completely after
April 9 until the strike was settled
Robert C Brown, executive vice president of Respondent
Concrete Materials, Inc., a manufacturer of ready-mix con-
crete, gave testimony substantially as follows. About April
1, 1969, a strike was called which caused "the shutdown
in the construction industry." For the first couple of days
said strike caused "very little change" in Concrete's amount
of business However, by the third or fourth day "volume
was way down," so that on the fourth day "we were
off [two-thirds] from our seasonal level, which [seasonal
level], perhaps, is 75 or 80 percent of the summer level."
Hence, Concrete Materials shut down for the duration
of the strike.
Concrete Materials' magnitude of business with heavy
contractors "is not only minimum but spasmodic." It
amounts to between 5 and 10 percent of Concrete's total
volume Similarly, its sales to "do-it-yourself home users"
were small. Thus these groups of customers, although neither
was struck or picketed, did not provide much business
for Concrete during the strike of Painters and Ironworkers.
Therefore Concrete did not supply them during the strike
of Painters and Ironworkers because it was not financially
profitable to serve customers yielding such inconsequential
business.
Concrete's maintenance work is performed by its hoisting
engineers, laborers, and teamsters. Most of this is performed
in the winter when sales of ready mix concrete are slow
Conditions at Dusselier Bros Ready Mix Co. were
described by Melvin Walter, its manager. His testimony
in substance follows. Dusselier supplies customers in the
proportions of 50 to 55 percent to home builders, and
40 to 50 percent to "basement companies" owned by the
individual members of Dusselier, and 5 percent "for odds
and ends " Its major customer is Ong Building Corporation
On April 1, 1969, Dusselier was scheduled to pour ready-
mix concrete at certain jobsites of Ong While so pouring
at these jobsites Ong was picketed and was forced to
shut down Accordingly, Dusselier was constrained to stop
further deliveries to Ong's jobsites. This, plus the strike
at the jobsites of other customers of Dusselier, caused
the latter to cease producing ready-mix concrete for the
remainder of the strike against Ong and other customers.
During this period, i.e., during the strike, Dusselier's
employees performed only maintenance work at its plants,
but they produced no ready-mix concrete. Except in an
emergency such maintenance work is assigned to its employ-
ees only during the winter months when business is slow.
However, since Dusselier shut down during the strike,
some of its employees were retained to engage in repair
work until the strike ended.
Olathe Ready-Mix Concrete Co. is one of the Respondents
in this case Its vice president and chief executive officer
is Arthur J. Martin. As summarized his testimony discloses
the following About 85 percent of its concrete is sold
to home building contractors. Of the remainder about 10
percent is purchased by commercial or public building
BOTSFORD CONCRETE CO, INC 811
contractors ; and around 5 percent is taken by "odds and
ends," of which less than 2 percent is delivered to heavy
contractors.
Between April 1 and 10, 1969, about 70 percent of
Olathe's customers either shut down or planned to shut
down on account of the strike of Painters and Ironworkers
Since it was economically unsound to operate at 30 percent
of normal , Olathe stopped producing concrete from April
11 until the strike ended During this period some of
its employees were assigned to do maintenance work at
its plant
Although Olathe operates on a reduced scale in winter
it does so only because it is "obligated to customers who
are substantial buyers through the good operating months,
and it necessitates our taking care of them on small chores
during the winter months . . . We're obligated to take
care of [them on small orders in winter ] because if we
don't we lose [their] business in the summer . We don't
operate in the winter by choice "
At another time in the past (about 1960) Olathe had
to shut down when a strike of most of its customers
rendered continued operations by it dunng such period
economically unfeasible.
Robert Shaw 's connection with Respondent Clayco Con-
crete Co. is that of president . His testimony may be con-
densed as follows: Clayco delivers "very little, if any,"
ready mix to contractors . On April 11, 1969, it shut down
operations for the duration of the strike.
Respondent closed its case vftth William W. Hutton,
general counsel and managing director of the Association
His testimony may be compressed as follows On several
occasions in late March , 1969, during negotiations between
Hutton and Bill Richardson of Painters District Council,
the latter stated that "he was going to picket the Labor
Committee" of the Association . Richardson said he felt
this became imperative because , although painting contrac-
tors seemed agreeable to his terms which he characterized
as "reasonable," said Labor Committee "said no" to such
"reasonable" terms.
C. Concluding Findings and Discussion
At all times material herein none of the unions represent-
ing the employees of any of the Respondents went on
strike against said Respondents or the Association. Nor
were such unions at any material time engaged in a labor
dispute or in contract or contract renewal negotiations
with the Association respecting or affecting Respondents
or any of them . Also, at no time material did Painters
or Ironworkers have a labor dispute with , or represent
the employees of, any of the Respondents, except that
Painters demanded painting work from Respondent Stewart
Sand & Material Co and picketed said Respondent in
furtherance of said demand . I expressly find that Painters
so picketed Stewart Sand.
It is not disputed , and I find , that Respondents shut
down their ready -mix plants beginning in early Arpil 1969,
and continuing thereafter until July 1969 , when the separate
strikes of Painters and Ironworkers were terminated. I
find such shutdowns to constitute lockouts. Nor is it contro-
verted , and I find , that said strikes of Painters and Ironwork-
ers commenced on March 31, 1969, and ended as above
recounted Also, I find that said strikes were not called
against any of the Respondents herein (except that Painters
picketed Stewart Sand ), but rather were conducted against
other members of the Home Builders Association . In connec-
tion with the foregoing finding I find that none of the
Respondents employed members of, or recognized, or had
collective-bargaining contracts with , the said striking labor
organizations , i e , Painters and Ironworkers . Rather,
Respondents employed members of, recognized , and had
collective bargaining contracts with , Teamsters , Hoisting
Engineers , and Laborers.
Further , I find that , in advancing said strikes, Painters
and Ironworkers picketed some, but not all , employers
whom they struck . However , said picketing was not consist-
ent or continuous , i.e , the same employers were not picketed
every day or for an entire day. Thus I find that neither
the struck employers nor Respondents , who regularly sup-
plied some of them with ready -mix concrete , could with
any reasonable certainty ascertain who among said struck
employers would be picketed on any particular day or
when on such day . Also, I find that on some occasions
a Respondent who dispatched its ready -mix concrete trucks
to a jobsite which was not then being picketed learned
that, when its truck arrived there, picketing had been
instituted at such location . As a result , such trucks returned
to such Respondent's plant without accomplishing a deliv-
ery.
Further , I find that the foregoing uncertainty rendered
it impracticable to continue to serve or supply said struck
employers after it became apparent to Respondents that
no regular or discernible pattern of picketing would be
followed by said striking unions. Consequently , it became
obvious that deliveries to such struck employers were expo-
sed to the risk that they would never be consummated.
This is because I find that the truckdnvers of Respondent,
who are members of a Teamsters Union , refused to cross
said picket lines pursuant to a clause in the Teamsters
collective-bargaining contract permitting such refusal with
impunity . On this aspect of the case I find that no labor
dispute existed between Teamsters and Respondents, but
that said Teamsters nevertheless considered and regarded
said picket lines as established within the meaning of the
contract clause extending to its members the right to honor
said picketing.
Further , I find that by Arpil 11 or 12, 1969, the operations
of the struck employers came to a virtual standstill as
a consequence of the strike, so that they caused ordering
ready-mix concrete from Respondents . This loss of business
by Respondents reduced their volume to such a point
that it became economically or financially undesirable or
impractical to maintain the regular work force at normal
levels. Hence I find that at least one reason prompting
the shut down of its plants after April 11 or 12 by Respond-
ents is that they) did so to avoid operating at a loss if
they continued to serve the struck employers . Cf. Betts
Cadillac, 96 NLRB 268; International Shoe Co., 93 NLRB
907
However, I also find that although Respondents during
the period of the strike lost their market with those members
of Homebuilders Association who were struck , a market
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of indeterminate proportions for the products of Respond-
ents existed among other contractors in the Kansas City
area who were not on strike during this period. However,
I find that such employers, i e , those not on strike, were
not regular customers of Respondents, and that it is conjec-
tural whether, and to what extent, Respondents could suc-
cessfully compete with other manufacturers of ready-mix
concrete already catering to the needs of, and supplying,
those nonstruck contractors Further, I am unable to find
whether sufficient business would be obtained from such
other contractors to warrant operations in an economically
sound manner.
But I find that Respondent was under no obligation
to explore the possibility of obtaining new markets during
the strike, for the manner of conducting a business is
to be determined by the sound judgment of an employer.
As long as such judgment is not tainted by antiunion
motivations , its exercise, no matter how unreasonable or
harsh it may be thought to be, will not be reviewed by
the National Labor Relations Board AGC, Georgia Branch,
138 NLRB 1432, 1446, N.L.R.B. v. United Parcel Service,
Inc., 317 F 2d 912, 914 (C A. 1).
Assuming that the Board may sit in judgment upon
an employer's exercise of management prerogatives pertain-
ing to the manner of operating his business (but see N.L.R.B.
v American National Insurance Co., 343 U S 395, 409),
the same result is reached. Thus I find that Respondents
in good faith discontinued their operations because:
(a) it was impossible to determine whether and when
picket lines (which their truckdrivers respected and thereby
refused to cross) would be established at the jobsites of
customers ordering ready-mix concrete, and
(b) in any event it became impossible to continue to
operate for long, if at all, on an economic or profitable
basis In this connection, I find that Respondents in good
faith had economic justification and therefore properly
sought to minimize , or eliminate, economic or operational
losses threatened by the strike of Painters and Ironworkers.
AGC, Georgia Branch, 138 NLRB 1432, 1442, Associated
General Contractors of America, et al., 105 NLB 767, 769,
793.
Accordingly, in these circumstances, I "fail to perceive
anything objectionable in the fact that Respondent . .
contractors organized themselves and acted in concert with
respect to the [Painters' and Ironworkers'] dispute, as indeed
they reasonably would have done in resolving any serious
problem of the industry which commonly affected them."
Associated General Contractors of America, Ind., et al.,
105 NLRB 767, 769.
Another reason for not condemning the shutdown or
lockout in this case is that I find it was adopted to support
the struck members of the multiemployer unit of the Associa-
tion . When a unit composed of several employers is assailed,
whether lawfully as by a strike against the entire unit
to enforce proper economic or other demands, or unlawfully,
such employers may legally unite to preserve that unit
by locking out all employees as a counter-offensive designed
to neutralize the attack
If the thrust or pressure on the unit is by a general
demand against all members thereof, such members may
lock out their employees to bring economic pressure in
support of their bargaining position even though such
employees are not on strike at the time See American
Ship Building Co. v N.L.R B., 380 U.S. 300 In this connec-
tion I find that the strike of Painters and Ironworkers
threatened the cohesion of the Association's unit, for such
strike was against a substantial number of the Association's
members While it is true that said strike was not directed
against any of the Respondents, it is my opinion that
no different rule of law should govern this latter situation
In other words, it is of no consequence that Respondents
were neither struck nor threatened with a strike because
they had no contractual relations with the striking unions.
The crucial fact sanctioning such shutdown or lockout-
and I find such fact present in this case-is that when
some members of a multiemployer unit are struck the
other employers of said unit may lock out their employees
to aid the struck employers in pressing their position regard-
ing the dispute from which the strike emanated. American
Ship Building, supra, points to this conclusion, and such
view reasonably flows from it as a corollary No so called
"whipsaw" tactics are involved in arriving at this conclusion
The foregoing analysis is based on the fact, which I
find, that a reason-but not the only one-why Respondents
shut down or locked out their employees is that they
desired to preserve and strengthen the position of their
fellow members of the Association in the dispute of the
latter with Painters and Ironworkers. On this branch of
the case I credit the Respondent's testimony that said
reason is one of those prompting Respondents to lock
out their employees, and I do not credit the evidence
of the General Counsel not consonant therewith
The foregoing analysis relating to a lockout by unstruck
members to support coordinate members of the same body
in a labor dispute confined or limited to the latter, and
which has neither been nor is likely to be extended to
the former, seems sound That the dispute will probably
not entangle the nonstruck employers appears in the instant
case to be a reasonable deduction because such employers
neither use employees belonging to the unions on strike
(i e., Painters and Ironworkers) nor have contractual rela-
tions with such unions. Hence such unions are not likely'
to make demands resulting in a strike of primary employers
who employ no members of such unions. (If the strike
is of a nonprimary employer, it may amount to a secondary
boycott.)
As noted above, such nonstruck employers may shut
down or lock out their employees to support fellow employ-
ers in the Association who have been struck by a union.
I have been unable to find decided cases dispositive of
this issue, although N.L.R.B. v. Brown et al. 380 U S.
278, probably guides us to the conclusion that such conduct
by nonstruck employers is lawful
But apart from Brown, supra, and allied cases, and disre-
garding the same, it would seem that a similar result
is desirable. This is because the Board and the Courts
recognize and sanction the creation and functioning of
multiemployer units. However, if such units are to be
' The demand of Painters on Stewart Sand & Material is an exception
It is examined and analyzed hereinafter
BOTSFORD CONCRETE CO, INC. 813
able to operate the members thereof should be allowed
to render aid and assistance to any other member who
is confronted with a labor dispute To deny such aid and
assistance to the member involved in such dispute would
in effect be rendering the unit an impotent creature, contrary
to the intendment of the Board and Courts in permitting
the existence of such units.
So far I have found two reasons, both lawful, for the
shutdown or lockout by the nonstruck employers: (a) it
became necessary, as a matter of sound business practice,
in order to minimize operating at a loss, and (b) it was
resorted to in support of the position taken by the struck
employers, i.e., it was utilized as an economic weapon,
intended to strengthen the struck employers in their dispute
with Painters and Ironworkers But I also find a third
reason , discussed more fully below, which induced such
action.
It is my opinion, and I find, that Stewart Sand & Material
Co. was subjected to a "whipsaw" tactic when Painters
picketed its plant. This is because Painters singled out
one ready-mix member, Stewart Sand, in a multiemployer
unit, the Association, and applied economic pressure to
it without engaging in similar conduct against other ready-
mix contractors in said Association. Such conduct is a
11 'whipsaw' plan . . `Whipsawing' is the process of
striking one at a time the employer members of a multi-
employer association." N.L.R.B v. Truck Drivers Local
Union No 449, 353 U.S. 87, 90, fn. 7
Not only did Painters put into effect a whipsawing plan
by picketing against Stewart Sand, but the purpose of
such plan, in my opinion, was proscribed by the Act.
For I find that said picketing of Stewart Sand was to
require said employer to recognize Painters as to those
employees of Stewart who were temporarily performing
painting maintenance work , notwithstanding that said
employees were already represented by another labor organi-
zation, i.e., Teamsters, Laborers, or Hoisting Engineers,
in performing such duties. In effect such picketing was
designed to cause Stewart Sand to withdraw recognition
from said unions and extend it to Painters. Such picketing
is banned by Section 8(b)(7) of the Act. Insofar as the
General Counsel's evidence is inconsistent with these find-
ings I do not credit it. I do not regard Section 8(f)(1)
as authorizing Painters to picket Stewart Sand to cause
the latter to recognize Painters and thereby withdraw recog-
nition from other unions respecting such painting mainte-
nance work.
Since Painters adopted a whipsawing plan by the above
described picketing of Stewart Sand, it then became lawful
for other ready mix members of the Association temporarily
to lock out their employees as a defensive measure. And
I further find that Respondents were not motivated by
antiunion or retaliatory considerations in putting into effect
such temporary lockout, but, rather, resorted to such con-
duct as a provisional expedient until the dispute with Stewart
Sand was settled
In addition, I expressly find said lockout was not instituted
to frustrate organizational efforts of any union, to destroy
or undermine bargaining representation, to evade the duty
to bargain, or to serve as a reprisal against union activity.
Finally, I find that the temporary lockout was used as
a defense to the Painters' picketing tactics which threatened
to destroy the solidarity of the Association in bargaining
on a group basis, and that such defense was not begotten
of or engendered by union animus.
As I have found no antiunion intent behind the temporary
lockout as a counter-measure to the whipsawing, I further
find that such lockout does not amount to an unfair labor
practice and, therefore, is lawful. N.L.R.B. v. Truck Drivers
Local Union No. 449, 353 U S. 87
Accordingly, I find that the allegations of the complaint
have not been sustained and that the complaint herein
should be dismissed.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Union and the other unions mentioned herein
are labor organizations within the meaning of Section 2(5)
of the Act
2. Each Respondent is an employer as defined in Section
2(2), and is engaged in commerce within the meaning
of Section 2(6) and (7), of the Act.
3. At all times material herein each Respondent locked
out its employees by shutting down its ready-mix concrete
operations.
4 The lockout described in paragraph 3, supra, was
not put into effect for unlawful ends or aims , nor was
it motivated by antiunion considerations.
5. None of the Respondents has committed any unfair
labor practices by having recourse to said lockout.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
case, I recommend that the Board dismiss the complaint
herein in its entirety.2
3 In the event no exceptions are filed as provided by Sec 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings , conclusions, recommendations , and Recommended Order
herein shall , as provided in Sec 102 48 of said Rules and Regulations,
be adopted by the Board and become its findings , conclusions, and
order, and all objections thereto shall be deemed waived for all purposes