J. R. Simplot Co.

National Labor Relations Board - Board Decisions

Nov 21, 1963

145 N.L.R.B. 171 (N.L.R.B. 1963)

J. R. SIMPLOT COMPANY 171
cease selling or otherwise dealing in the products of Durling Dairy Distribu-
tors d/b/a Woolley 's Dairy, or to cease doing business with Durling Dairy
Distributors.
MILK DRIVERS AND DAIRY EMPLOYEES ' LOCAL 680,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF
AMERICA, IND.,
Labor Organization.
Dated------------------- By-------------------------------- -----
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If anyone has any questions about this notice or whether Local 680 is complying
with its provisions , he may communicate with the Board 's Regional Office, 614
National Newark Building, 744 Broad Street, Newark, New Jersey, Telephone No.
Market 4-6151.
J. R. Simplot Company and International Union of Operating
Engineers , Local 370, AFL-CIO. Case No. 19-CA-255541. Novem-
ber 21, 1963
DECISION AND ORDER
On June 3, 1963, Trial Examiner William E. Spencer issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
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 hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and 'brief, and the entire record in
this case,' and adopts the findings, conclusions, and recommendations
of the Trial Examiner with the following modifications.
As described more fully in the Intermediate Report, the Respondent
operates, among other things, an open pit phosphate ore and shale mine
in Idaho. The Union has represented the Respondent's production
and maintenance employees since its certification in 1954. Bargaining
I The Respondent 's request for oral argument is hereby denied as the record , the excep-
tions, and the brief adequately present the issues and the positions of the parties.
The Respondent ' s motion to reopen hearing is also denied , as the incidents referred to
in said motion , even assuming that they occurred as set forth therein, are irrelevant to,
and would not affect, our disposition of the issues in this case.
145 NLRB No. 16.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for a new contract between the Respondent and the Union began in
September 1962. Approximately nine bargaining sessions were held
between the parties, and, on November 27, the Respondent's employees
rejected what Respondent characterized as its "last offer." On Decem-
ber 4 the Respondent called a meeting of its employees at which time a
prepared speech was given by its director of mining operations. The
Trial Examiner found and we agree that this speech, which is quoted
extensively in the Intermediate Report, constituted an "appeal to the
employees to rebel against their present Union Leadership." Thus, as•
he found, the Respondent's speech suggested that employees deal di-
rectly with the management in settling their grievances; contained "an
incitement that employees repudiate their present union representa-
tion"; and threatened a lockout and the discontinuance of benefits
which had been given to employees under the old agreement if the
Respondent's "last offer" were rejected. The Trial Examiner further
found, and we agree, that during the same period, the Respondent's
supervisors echoed the "main thrust" of these remarks in conversa-
tions with employees, the "tenor" of the supervisors' remarks being
that employees would suffer economic harm if the Respondent's "last
offer" were rejected.' Another bargaining session was held on Decem-
ber 6, but no agreement was reached, and on the same date the Re-
spondent shut down its operations and locked out its employees.
We agree with the Trial Examiner, for the reasons set forth in the
Intermediate Report, that by locking out its employees on December 6,
the Respondent violated Section 8 (a) (1) and (3) of the Act. We also
agree with the Trial Examiner that by the Respondent's speech to
employees on December 4 'and by the various threats made by its super-
visory personnel to employees, the Respondent further violated Sec-
tion 8 (a) (1) of the Act. We further find that the totality of the fore-
going conduct, consisting of the Respondent's speech to employees on
December 4, the various threats made by supervisors to employees, and
the lockout itself, all of which occurred while collective-bargaining
negotiations were in progress, establishes that the Respondent failed
to bargain in good faith in violation of Section 8(a) (5) of the Act.
2 The record shows that Pit Boss Huegas admitted that, on at least three different
occasions between the time of the Respondent 's last contract offer and the lockout, he
told employees individually and in a small group that they should think over the Company's
last proposal and that they ought to accept it as it was a good offer , that the Company
could move its equipment to other holdings , and that "he hated to see any of the boys
out of work." Huegas also admitted that on one of these occasions , in reply to an em-
ployee's remark about drawing unemployment compensation in the event of a shutdown,
he stated that he didn't believe that the men could draw compensation under these cir-
cumstances and later added that he, Huegas , could "work 30 hours a week and never
draw unemployment ." The record also establishes that Assistant Supervisor Hill, who
did not testify at the hearing, also made a statement to an employee that if an agree-
ment wasn't reached, "the Company could apply pressure , such as cutting . . . vacations
and wages , and cutting off overtime."
J. R. SIMPLOT COMPANY 173
ORDER
The Board adopts the Recommended Order of the Trial Examiner?
:The Recommended Order is hereby amended by substituting for the first paragraph
therein, the following:
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that Respondent , J. R. Simplot Company, its officers, agents , successors , and assigns,
shall:
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136; 73 Stat. 519), herein called the Act, was heard before
Trial Examiner William E. Spencer at Pocatello, Idaho, on March 20, 21, 1963,
pursuant to due notice. The complaint, issued February 13, 1963, by the General
Counsel of the National Labor Relations Board, the latter herein called the Board,
upon a charge filed December 21, 1962, by International Union of Operating Engi-
neers, Local 370, AFL-CIO, herein called the Union, alleged in substance that the
Respondent, by a lockout of its employees and specified coercive statements and con-
duct, violated Section 8(a)(1), (3), and (5) of the Act. Respondent in its duly
filed answer admitted the lockout but denied the unfair labor practice allegations.'
Upon the entire record in the case, from my observation of the witnesses, and after
considering the briefs filed with me by the General Counsel and the Respondent,
respectively, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Nevada corporation, is engaged at its Gay Mine near Pocatello,
Idaho, in phosphate mining for fertilizer manufacturing. It also manufactures fer-
tilizer and other products at various plants located in the State of Idaho. Annually,
in the course and conduct of its business operations, Respondent sells and ships di-
rectly to purchasers in States other than Idaho, products valued at more than $50,000.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. The lockout
Respondent's brief adequately summarizes the operation of its Gay Mine, located
some 18 miles east of Fort Hall, Idaho, its only operation directly involved in these
proceedings. The mining process involves the removal of overburden or waste ma-
terial to expose first, a bed of low-grade shale, under which is found high-grade ore,
which is ultimately shipped by railroad to the Respondent's processing plant located
near Pocatello, Idaho. The low-grade shale is ultimately shipped by the Respondent
to the FMC Corporation plant. An average of just over a million tons of ore is
shipped from the mine during the mining and shipping season. This season ordinarily
begins in the spring and continues through September, and sometimes October.
During the remaining months the operations at the mine include the removal of over-
burden to prepare for mining in the summer; the mining and stockpiling on the mining
premises of ore; drilling of holes in the ore body to determine grade, thickness, and
tonnage of ore; construction of roads; mapping; surveying; and assaying. Ore is not
ordinarily shipped from October until spring because during these months the ore
freezes solid in the railroad cars and can only be removed with jackhammers and
picks, and such was the case during the months of January, February, and part of
i The record of this proceeding is opened for the purpose of receiving in evidence a post-
hearing stipulation of the parties , to be designated as Trial Examiner 's Exhibit No. 1,
with respect to the resumption of operations by the Respondent.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 1963. Additionally, muddy roads at the mine and a shortage of railroad cars
ordinarily preclude extensive mining operations at the mine during the winter months.
The stockpiled ore exposed during the winter operation is shipped during the sub-
sequent summer season. Both the FMC Corporation plant and the Respondent's
plant operate on a year-round basis and during the nonshipping season obtain their
ore from stockpiles of ore shipped from the Gay Mine during the summer months
and located on the respective plant premises.
Since its certification in 1954 and up to the time of the present controversy the
Union has had collective-bargaining agreements with the Respondent covering em-
ployees in the following unit found to be appropriate for purposes of collective
bargaining:
All hourly rated production and maintenance employees employed by the
Respondent at its Gay Mine operation, exclusive of office clerical employees,
professional and custodial employees, guards, and supervisors as defined in the
Act.
Relations between the parties appear to have been amicable throughout this period,
with neither strike nor threat of strike prior to the termination of the most recent
contract on October 15, 1962. Bargaining on a new contract began on September 4,
1962, but in ensuing negotiations no agreement was reached. The November 5 meet-
ing, and all meetings held thereafter, were attended by a Federal mediator. At a
meeting of the parties on November 16, the Respondent gave the Union what it
described as its final offer for a contract and requested that the Union submit this
offer to the unit employees for approval or rejection. On November 27, the Union
submitted this company proposal to the employees and they rejected it by an over-
whelming vote. At this same meeting a strike vote was taken with the result that
the employees voted 45 to 1 to strike. The vote was taken without reference to any
particular date for a strike, and it was explained to the employees by union officials
and understood by them, that before there could be a strike the matter would have
to be resubmitted to the employees and cleared through the Union. Following the
taking of the strike vote no actual preparations were made for instituting strike action.
On the following day the Respondent was informed by the Federal mediator that its
final offer on a contract had been rejected and that a strike vote had been taken.
At no time during these bargaining conferences did the Union threaten strike action,
and at no time during such conferences did the Respondent inquire of the Union
concerning strike action.
On December 4, the Respondent called a meeting of its employees and its director
of mining operations, O. E. Pothier, in a prepared address, told them that in view
of the strike vote the Company would have to take steps to protect itself, assailed
the Union for its negotiating tactics, and further stated, inter alia.
This company is in the situation of being forced by law to negotiate with a
union which refuses to negotiate but we are expected to concede completely
to their unreasonable demands.
We cannot and will not go along with present union demands. We refuse to be
placed in an untenable position at the whim of the union. We have conceded
to a number of requests by the union. We have tried to negotiate. It is now
clear to us by the union's action that they do not want to settle at this time.
We have tried everything that we know to bring about a reasonable settlement
and have gotten nowhere.
There are certain disadvantages in belonging to a union. The present situa-
tion brings out a couple of reasons; namely, the possibility of serious labor
disputes and a one man rule which you now have representing you. We would
much rather deal with you people than to have any union or outsider to settle
grievances.
You as members of the union have very little to say in its operation. You
who are not members have nothing to say unless the union chooses to recognize
you.
We are forced today to protect ourselves after trying for more than 100 days
to effect a reasonable settlement. It is with a lot of concern and regret that we
are taking this step but we have been forced into it. We can no longer operate
this mine without an agreement and as of Thursday night we are completely dis-
continuing operations.
Late last night I called Salt Lake City and requested the Federal mediator to
arrange a meeting between the union, your negotiators and the company. This
meeting will be held Thursday morning, December 6 at 10:00 a.m. at the
Bannock Hotel in Pocatello.
J. R. SIMPLOT COMPANY 175
May I suggest to all of you that you calla meeting and talk this over. Labor
disagreements such as now exists are a serious matter and should require serious
thought. It is my opinion that you people should talk to your union rep-
resentative and demand a reasonable representation . You have certain legal
rights as an employee such as taking action as to whether the union represents
all of you.
We want it understood that a labor dispute does exist and when the mine is
closed down Thursday evening because of this labor dispute, you people are
not entitled to unemployment compensation . Health and welfare , as well as
other benefits from the old agreement , are no longer in effect.
We will continue to meet with the union and your representatives at any time
for we stand ready and willing to negotiate . I hope that we can consummate a
contract within a very few days.
At a meeting of the parties on December 6 reference was made by the mediator
to the taking of a strike vote and the Respondent 's contemplated action in closing
down its operations . At this meeting , as well as at all other times, the Respondent
sought no information concerning the taking of the strike vote and the Union
volunteered none. The matter of the strike vote was merely mentioned by the
Federal's mediator ; it was not discussed by the parties 2 No agreement on a
contract was reached at this meeting and on the evening of that same day, as
previously announced to its employees , the Respondent shut down its mine opera-
tions and thereby locked out its employees . They remained locked out until
March 29, 1963 , when the Respondent called all its employees back to work "for
the purpose of commencing its 1963 mining and shipping season operations and the
conditioning of machinery incidental thereto."
B. Concluding findings
I find that the Respondent was not faced with a threat of imminent strike action
at the time it locked out its employees . Neither in nor out of bargaining conferences
did the Union threaten strike action if its bargaining demands were not met. The
fact that a strike vote was taken may have been cause for alarm, but there is no
reason to believe that the Respondent construed this strike vote as a threat of im-
mediate strike action. The fact is that the Respondent was concerned , with some
justification , lest the Union institute strike action on or after May 1 , at a time
when the Respondent would have resumed full-scale mining and shipping operations.
This concern arose out of the fact that among the Union 's bargaining demands was a
demand for a change in the termination date of the bargaining greement from October
to May, and may have been heightened by the strike vote. I think it is unlikely that the
Union would have settled on May 1, 1963, as the termination date, inasmuch as that
would have meant a contract of only some 6-month duration , but there is no
question that it demanded that May instead of October mark the termination date
of future contracts . Also, I think there can be little doubt that the Union demanded
this change because it wanted the termination date of any agreement between it and
the Respondent to coincide with the resumption of full'scale mining operations when
it could most advantageously bring pressure to bear on the Respondent to obtain
its bargaining objectives . Respondent fully understood this and had every right
to resist such a demand through the processes of collective bargaining . The legal
question on the facts stated thus far is whether the Respondent could insure itself
against strike action which might or might not occur some 4 months in the future,
by employing the lockout as an economic weapon for forcing acceptance of its final
offer on a contract . As I understand the law in its present state of development, it
could not.
There is nothing novel in a labor organization seeking through collective bar-
gaining to have its collective agreements terminate at a time most advantageous
to it for obtaining a new contract on favorable terms. In every such bargaining
situation there is implicit the possibility of economic pressure being applied at a
time most favorable to the union . The fact that here a strike vote was taken and
that outside of bargaining conferences certain statements may have been made by
2 Respondent 's Industrial Relations Officer Hugh Larkin's testimony that at the Decem-
ber 6 conference he stated that In view of the strike vote ," the Respondent would take
action to protect its economic welfare , is in conflict with the testimony of General Counsel's
witnesses , Edward R . Kobe, Emmett Flynn , and Robert Kinghorn, all associated with the
Union, and was not corroborated by Respondent 's personnel director , Richard Brown, or
general superintendent , John Clouser.
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union employees to supervisors on the probability of economic pressure being
applied if no contract was agreed on before Respondent resumed full-scale opera-
tions in May, hardly constitutes a novel situation, the strike vote being little more
than a formality, taken without reference to time, and the possibility of the Union
resorting to economic pressure at a time most advantageous to it if its bargaining
objectives were not met, being inherent in all such situations. In short, if a lockout
based on no more than a reasonable surmise that the Union may choose a date
some 4 months in the future as an occasion to strike, is permissible here, it is
permissible in just about any bargaining situation where an employer may have
cause to believe that without agreement on a contract its employees' representative
may, and likely will, choose some date in the future, advantageous to it and dis-
advantageous to the employer, to strike. I do not believe that the weight of
authority thus far holding lockouts to be lawful can be stretched to cover such a
situation 3 While here it appears that something of an impasse had been reached
in bargaining, negotiations were continuing, and in fact did continue in the months
following the lockout. During such a period as would elapse between the date
of the lockout and the date when the Respondent had reason to fear that the Union
might institute strike action, economic conditions might well undergo change as
well as the attitudes and bargaining demands of the parties, and to countenance the
action of the Respondent in raising such a formidable impediment to continued
bargaining as the lockout on the mere surmise that a strike might occur some 4
months hence, no matter how reasonable the surmise, would be to legitimatise more
interference with the processes of collective bargaining and the employees' protected
right to strike than is sanctioned by present Board and court opinion.4
Findings thus far have been based on the assumption that the lockout was insti-
tuted as a countermeasure to a strike which the Respondent reasonably surmised
might occur some 4 months hence if agreement was not reached on a contract.
This may well have been one of the factors entering into the lockout action, but
it was not the only factor. The change in the termination date of future contracts
was but one of the issues on which the parties were deadlocked at the time of the
lockout. Of equal and perhaps paramount concern was the issue of wages. The
Respondent considered the Union's wage demands exorbitant. Whether they were
or not I do not know and it is not a matter to be decided here. A careful reading
of Pothier's address to the employees on December 4 in which a lockout was threat-
ened, shows scarcely more than a passing reference to the strike vote while the
burden of the speech and its main thrust is the unreasonableness of the Union's
bargaining demands. This was echoed by supervisory personnel in conversations
with employees, the tenor of such statements being that the employees should accept
the company's contract offer, would benefit thereby, and would suffer losses if the
offer was rejected. Obviously, the lockout was not resorted to solely as a counter-
measure to contemplated future strike action, but also to force acceptance of Re-
spondent's final contract offer.5 Had strike action been the Respondent's major
concern, before resorting to such a drastic measure as the lockout would it not at
8In Packard Bell Electronics Corporation, 130 NLRB 1122, the employer acted on in-
formation that a strike would be called within 48 hours; in Betts Cadillac Olds, Inc,
et al, 06 NLRB 268, also relied on by the Respondent, an association of automobile dealers
was involved, two of the members already having been struck; in American Brake Shoe
Company ( Ramapo Ajax Division ) v. NLRB , 244 F 2d 489 (C A. 7), there is some sup-
port for Respondent's position but the Trial Examiner is bound by Board precedent unless
and until the Board itself has overturned the precedent or the decision has been set aside
by the Supreme Court
* In the Supreme Court's recent decision on supersenlority accorded strikers, Congress'
concern with safeguarding the right to strike receives cogent explication. N L.R B. v.
Erie Resistor Corp, 373 U S. 221.
8 Mention should be made of the testimony, notable for its economy of expression of
General Counsel' s witnesses : Ed Boyer, chairman of the Fort Hall Business Council of
the Shoshone-Bannock Tribunal ; Allen Tindore, a member of the Council ; and John
Pokebro, a member of the Shoshone-Bannock Tribe. Respondent operated under a lease
with the Shoshone-Bannock Tribe, and the burden of this testimony was that the Re-
spondent Informed the Council that it was contemplating closure of its mining operations
because of a dispute over contract terms and because the employees might walk out
"eventually." There is substance to the argument that the Respondent ran the risk of
violating its lease in ordering the lockout, but that is not a matter to be determined here.
Obviously, the primary concern of these witnesses in the entire matter was the threatened
loss of revenues under lease arrangements with the Respondent.
J. R. SIMPLOT COMPANY 177
least have attempted to negotiate with the Union, as it did during the period of the
lockout, on such matters as adequate strike notice, a no-strike clause in the bargaining
agreement, or assurances of one sort or another against precipitate strike action when
full production was resumed in the spring? I think it would.
In my opinion there is very little of substance in the facts noted thus far to dis-
tinguish this case from Utah Plumbing and Heating Contractors Association, etc.,
126 NLRB 973, enfd. 294 F. 2d 165 (C.A. 10) .6 There the employer locked out its
employees to require acceptance of its offer for a contract. There a strike vote had
been taken but there was no actual threat of strike and, as here, a second vote would
have to be taken before strike action could be instituted. There as here the em-
ployer had made its final contract offer and threatened and instituted a lockout when
assurances were not forthcoming that it would be accepted. There as here negotia-
tions were continuing. The issue was clearly drawn. As stated by the court, the
Board's order was "challenged on the single ground that an employer may use the
economic weapon of a lockout at the termination of a contract with a union as a
corollary of a strike which may be used by the union at any time its members see
fit." Stripped to its substance I think that is the posture of the issue here. When
Pothier said, "We can no longer operate this mine without an agreement," he ob-
viously was referring to Respondent's final offer. The price demanded by the
Respondent for calling off the lockout was its acceptance. The employer's theory
in the Utah Plumbing was rejected by the court and the Board's order, based on a
finding that the lockout was unlawful, enforced. As to the one factor on which the
Respondent relies principally in its effort to distinguish this case from Utah Plumbing,
i.e , economic hardship in the event of a strike, I doubt that such a defense can be
raised successfully on the mere surmise that a strike may occur some 4 months in
the future. In any event I can find no evidence upon which to base a finding that
the shale and ore which the Respondent normally extracts and stockpiles at the mine
site during its off-season operations, is of such a perishable character that the Re-
spondent's investment in it would be irretrievably lost in the event of a strike occur-
ring during its shipping season, or that such a strike would necessarily result in
damage to machinery used by it in its mining operations. Obviously, if Respondent's
mine was closed down during the shipping season shipments to Respondent's proc-
essing plant near Pocatello and to the FMC Corporation plant would be affected as
long as the strike lasted and was effective, but there was available to both of these
plants ores from sources other than the Gay Mine and it is not shown that it would
be impractical for them to draw on these sources for operative purposes, though this
might involve some economic loss and hardship. A strike is employed as an economic
weapon and it is expected by those who wield this weapon that it will result in
economic loss to the employer against whom it is directed. I do not see that there
is anything peculiar or exceptional in the situation here which distinguishes it from
the normal strike situation of equivalent scope, and ordinary "business interruptions
or loss normally incident to a strike are insufficient to invoke a lockout." Texas Gas
Corporation, 136 NLRB 355, 367-368. I think what Respondent is really contend-
ing is that any lockout is permissible if economically motivated. This is but another
way of stating the employer's position in Utah Plumbing, for it means that the lock-
out is on the same legal footing as the strike. To some, this no doubt would be a
fair and equitable state of law. It is not, I think, the law as it is now written and
applied by the Board and a majority of the courts.
Finally, there is still another factor involved in the lockout here and one which
distinguishes this case from cases previously cited. There is compelling evidence that
in resorting to the lockout the Respondent, aside from purely economic interests,
hoped to weaken the Union and undermine its efficacy as a bargaining agent.
Pothier's address to the employees on December 4 is an undisguised appear to the
employees to rebel against their present union leadership, described by Pothier as
"a one man rule which you now have representing you," 7 accompanied by the
suggestion that they deal directly with management in settling their "grievances."
While the address contains the assurance that the Company would continue to meet
E See also Quaker State Oil Refining Corporation v. N.L.R.B., 270 F. 2d 40 (CA. 3),
cert denied 361 U S 917
7 Pothier's reference was to Emmett Flynn, the Union's field representative, who first
assumed his post in the area of Respondent's operations in the spring of 1962. As ad-
mitted in Respondent's brief, Flynn "had been able to get the men better organized and
more united than ever before," and, apparently, the Respondent regarded him as the chief
obstacle to arriving at a satisfactory bargaining agreement.
734-070-64-vol. 145-13
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with and negotiate with the Union, it urges the employees to "demand reasonable
representation," and assures them that they "have certain legal rights as an employee
such as taking action as to whether the union represents all of you"-this last, clearly
an incitement that employees repudiate their present union representation. Such
remarks, coupled with the threat of lockout if the Company's final offer was not
accepted, and a discontinuance of health and welfare as well as other benefits under
the old agreement, threats echoed by supervisory personnel, not only violated Section
8(a)( I) of the Act, being inherently coercive, but divulge a mixed motivation for
the lockout. In view of such statements, directed not to the Union in bargaining
conferences but to the employees, collectively and individually, the conclusion is
unavoidable that Respondent's resort to the lockout was not solely defensive in the
economic sense, but had a further purpose of undermining the Union in its representa-
tive capacity. A lockout with such mixed motivations does not fall within any of
the decisions of the Board or the courts, of which I have knowledge, upholding the
legality of the lockout.
On the entire record it is found that by its threat of lockout and lockout of em-
ployees, and threats of reprisal if its final contract offer was not accepted, the
Respondent engaged in conduct violative of Section 8(a) (1), (3), and (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of the Respondents described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent threatened to lock out and locked out its
employees in violation of Section 8(a)(1), (3), and (5) of the Act, it will be rec-
ommended that it cease and desist therefrom and take certain affirmative action to
effectuate the policies of the Act.
It having been found that the Respondent's lockout constituted discrimination
within the meaning of Section 8(a)(3) of the Act, it will be recommended that the
Respondent make whole employees laid off or locked out for any loss of pay they
may have suffered by reason of the discrimination against them, by payment to
each of a sum of money equal to that which he normally would have earned during
the period of the lockout, less his net earnings during said period, such sums to be
computed in accordance with the formula set forth in F. W. Woolworth Company,
90 NLRB 289. Backpay shall include the payment of interest at the rate of 6 percent
per annum to be computed in the manner set forth in Isis Plumbing & Heating Co.,
138 NLRB 716. It is also recommended that the Respondents, upon request, make
available to the Board or its agents, for examination and copying, all payroll and
other records necessary to enable the Board to analyze and compute the amounts of
backpay due.
Having found that the Respondent by its lockout of employees refused to bargain
with the Union, the duly constituted bargaining representative of its employees in
an appropriate unit, I shall recommend that the Respondent, on request, bargain with
the Union as the exclusive representative of all its employees in the appropriate unit
concerning wages, hours, and other terms and conditions of employment , and, if an
understanding is reached , embody such understanding in a signed agreement.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. All hourly rated production and maintenance employees employed by the
Respondent at its Gay Mine operation, exclusive of office clerical employees, profes-
sional and custodial employees , guards, and supervisors as defined in the Act, con-
stitute a unit appropriate for purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
2. The Union , a labor organization within the meaning of Section 2(5) of the
Act, has been at all times material herein , and now is , the exclusive representative
of all employees in the aforesaid appropriate unit for purposes of collective bargain-
ing within the meaning of Section 9(a) of the Act.
3. By its lockout of December 6, 1962 , the Respondent refused to bargain in good
faith with the Union as the exclusive representative of its employees in the aforesaid
J. R. SIMPLOT COMPANY 179
appropriate unit, thereby engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (5) of the Act.
4. By its lockout of employees, the Respondent has discriminated in regard to the
hire and tenure of employment of its employees, thereby discouraging membership
in the Union, and thereby has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a) (3) of the Act.
5. By the foregoing conduct and threats of reprisal if its final contract offer was
not accepted, the Respondent has interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
6. The aforesaid labor practices are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the Respondent, J. R. Simplot
Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment, with the Union as the
exclusive representative of its employees in the previously described appropriate
unit.
(b) Discouraging membership in the Union, or any other labor organization of
its employees, by locking out, laying off, or reducing the workweek of its employees,
or by discriminating in any other manner in regard to their hire and tenure of employ-
ment or any term or condition of employment, except to the extent permitted in
Section 8 (a) (3) of the Act.
(c) Threatening its employees with a shutdown, lockout, or layoff, or threatening
other reprisals, in order to force them and their bargaining representative to yield
their bargaining demands and accept the Respondent's contract proposals without
further bargaining.
(d) In any other manner interfering with, restraining, or coercing its employees in
the exercise of the right to self-organization, to form labor organizations, to join
or assist the Union or any other labor organization, to bargain collectively through
representatives of their own choosing, to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or to refrain
from any or all of such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a condi-
tion of employment as authorized by Section 8 (a) (3) of the Act:
2. Take the following affirmative action for the purpose of effectuating the policies
of the Act:
(a) Upon request, bargain collectively with the Union as the exclusive representa-
tive of employees in the previously described appropriate unit with respect to rates
of pay, wages, hours of work, and other terms and conditions of employment, and
embody in a signed agreement any understanding reached.
(b) Make whole all employees discriminated against in the lockout, shutdown,
or curtainment of operations which occurred beginning December 6, 1962, for any
loss of pay they may have suffered by reason of the discrimination against them,
in the manner set forth in "The Remedy" above.
(c) Preserve and, upon request , make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze
and compute the amounts of backpay due under the terms of this Recommended
Order.
(d) Post at its Gay Mine operation near Pocatello, Idaho, copies of the attached
notice marked "Appendix." 8 Copies of said notice, to be furnished by the Regional
Director for the Nineteenth Region, shall, after being duly signed by the Respondent's
8 In the event that this Recommended Order be adopted by the Board , the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" In the notice . In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals , the words "A Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "A Decision
and Order."
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorized representative, be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for the Nineteenth Region, in writing, within
20 days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps it has taken to comply herewith.9
Y In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read* "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in International Union of Operating
Engineers, Local 370, AFL-CIO, or any other labor organization of our em-
ployees, by discriminatorily locking out, laying off, or reducing the workweek
of our employees, or by discriminating in any other manner in regard to their
hire or tenure of employment or any term or condition of employment.
WE WILL NOT threaten our employees with a plant shutdown, lockout, layoff,
or other reprisals, in order to force them and their bargaining representative to
give up their bargaining demands and accept our contract proposals without
further bargaining.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist the above named or any other labor organization, to bar-
gain collectively through representatives of their of their own choosing, to engage
in other mutual aid or protection, or to refrain from any or all of such activities
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as authorized
by Section 8 (a) (3) of the Act.
WE WILL make whole all employees discriminated against as a result of lock-
out, layoff, or curtailment of operations, for any loss of pay suffered as a result
of our discrimination against them.
WE WILL, upon request, bargain with the aforesaid Union as the exclusive
representative of all employees in the appropriate unit described below, with
respect to rates of pay, wages, hours of employment, and other terms and con-
ditions of employment, and embody in a signed agreement any understanding
reached. The bargaining unit is:
All hourly rated production and maintenance employees employed at our
Gay Mine operation, exclusive of office clerical employees, professional
and custodial employees, guards, and supervisors as defined in the Act.
All our employees are free to become, remain, or to refrain from becoming or
remaining members of the above-named labor organization or any other labor
organization, except to the extent that such right may be affected by an agreement
authorized by Section 8(a) (3) of the Act.
I. R. SIMPLOT COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 327 Logal
Building, 500 Union Street, Seattle, Washington, Telephone No. Mutual 2-3300,
Extension 553, if they have any questions concerning this notice or compliance with
its provisions.