Botsford Concrete Co., Inc.Download PDFNational Labor Relations Board - Board DecisionsSep 30, 1970185 N.L.R.B. 804 (N.L.R.B. 1970) Copy Citation 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 Copy with citationCopy as parenthetical citation