Ralston Purina Co.

National Labor Relations Board - Board Decisions

Jun 22, 1973

204 N.L.R.B. 366 (N.L.R.B. 1973)

366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ralston Purina Company and American Federation of
Grain Millers, Local Union 256 , AFL-CIO. Case
9-CA-6680
June 22, 1973
DECISION AND ORDER
On January 17, 1973, Administrative Law Judge
Ramey Donavan issued the attached Decision in this
proceeding. Thereafter, the Union filed exceptions
and a supporting brief, and Respondent filed a brief
supporting the Administrative Law Judge's Decision.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
MEMBERS FANNING AND JENKINS, dissenting:
For the reasons stated in the dissenting opinion in
Ottawa Silica, supra, and Inter Collegiate Press, et al.,
199 NLRB No. 35, we would find that Respondent
violated Section 8(a)(1) and (3) of the Act by locking
out unit employees and, thereafter, operating its plant
with nonunit employees and supervisors from Decem-
ber 6, 1971, through January 2, 1972.
Although Respondent contends it had reasonable
apprehension of a strike, the Union had assured Re-
1 Since we have indicated , in Ottawa Silica Company, 197 NLRB 449, our
view that an employer does not violate Sec 8(a)(3) or (1) of the Act by hiring
temporary replacements to continue operations during an otherwise lawful
lockout, absent antiunion motivation which we do not find here, we do not
herein rely on, nor even find materially relevant , the findings by the Adminis-
trative Law Judge as to the "offensive " or "defensive" nature of the lockout
Since we have indicated that we would not, in any event, follow Inland
Trucking Co and Wesley Melahn Co-Partners, d/b/a Oshkosh Ready-Mix Co,
179 NLRB 350, enfd 440 F 2d 562 (C A. 7, 1971), we find it unnecessary to
consider the Administrative Law Judge 's treatment of that case or the use of
temporary replacements.
Chairman Miller joins in the result but, as set forth in his concurring
opinion in Inter Collegiate Press, 199 NLRB No 35, believes it is necessary
in evaluating the legitimacy or illegitimacy of the employer' s interest in
resorting to the use of temporary replacements to balance the impact of such
conduct by Respondent on possible discouragement of union membership
against the importance and the legitimacy of the objectives of the Employer
In his view , therefore, the analysis contained in the Administrative Law
Judge 's Decision here was both appropriate and necessary, and he would
adopt it in full The Chairman agrees with his colleagues that the "offensive"
or "defensive" nature of a lockout is not of legal significance in measuring
the legality of the lockout , but believes, as did the Administrative Law Judge
below , that it is appropriate to weigh and analyze the totality of the circum-
stances in determining the legality or illegality of the use of temporary re-
placements in any given case
spondent it would be given adequate time to prepare
the plant for shutdown if a strike was called,2 and, in
fact, no strike vote was even taken before the lockout
ended. Moreover, the Administrative Law Judge
found "[t]he Company . . . chose the lockout for eco-
nomic and business reasons and with the hope that it
would result in a contractual agreement as proposed
by the Company." Accordingly, we are satisfied that
Respondent did not lock out the employees as protec-
tion against an imminent strike.
If Respondent had closed down its plant at the time
it locked out the employees, its action would have
been unquestionably lawful under the Supreme
Court's rationale in American Ship Building Co. v.
N.L.R.B., 380 U.S. 300 (1965). In that case, the Court
held that "an employer violates neither Section 8(a)(1)
nor Section 8(a)(3) when, after a bargaining impasse
has been reached, he temporarily shuts down his plant
and lays off his employees for the sole purpose of
bringing economic pressure to bear in support of his
legitimate bargaining position." In the instant case,
however, Respondent continued to operate by replac-
ing the locked out employees with supervisors and
office personnel in an effort to pressure the Union to
acquiesce to the contractual agreement proposed by
the Company. The Supreme Court has never sanc-
tioned the use of temporary replacements when the
employer has engaged in an "offensive" lockout. As
stated in the dissents in Ottawa Silica, supra, and Inter
Collegiate Press, supra, we regard Brown Food Stores 3
as a special case involving a defensive response to
preserve the integrity of a multiemployer bargaining
unit which was threatened by a whipsaw strike. In
American Ship Building, supra, handed down the same
day as Brown Food Stores, the Court explicitly stated
"we intimate no view whatsoever as to the [legal] con-
sequences which would follow had the employer re-
placed its employees with permanent ... or even
temporary replacements."
However, the Supreme Court denied the
Employer's petition for certiorari in Inland Trucking,
supra, in which the Court of Appeals for the Seventh
Circuit Stated:
We conclude that the bargaining lockout, which
was held in American Ship not to be inconsistent
with protected employee rights, does become so
if the employer does not shut down, but contin-
ues operations with temporary replacements.
Such lockout forecloses the employees' opportu-
nity to earn without surrendering the corres-
ponding opportunity of the Employer.
As the opinions in Ottawa Silica and Inter Collegiate
2 The Administrative Law Judge found "[tihis plant was not as vulnerable
as are plants in some industries to sudden strikes or strikes on relatively short
notice We do not believe that the Company considered that by early Decem-
ber a strike was imminent in the sense that it was about to occur immedi-
ately "
J N L R B v Brown, et al, d/b/a Brown Food Stores, 380 U S. 278 (1965)
204 NLRB No. 43
RALSTON PURINA COMPANY 367
Press clearly indicate, along with Chairman Miller, we
constitute a Board majority for the proposition that
the circuit court's decision in Inland Trucking sets
forth the tests for determining the legal propriety of
a lockout and concomitant operation with replace-
ments.
Members Kennedy and Penello, in Ottawa Silica,
state that they do not ". . . perceive anything in the
language of the Supreme Court in Brown Food Stores
to the effect that continued operation by use of the
Employer's own nonunit personnel is to be treated
differently from the use of newly hired temporary
replacements." We agree but find the use of either
type of replacement equally repugnant to the Act. As
we stated in our dissent in Ottawa Silica, ". . . it is
clear that the coercive impact on the locked out em-
ployees and the advantage to Respondent of contin-
ued operation would be just as great regardless of
whether the temporary replacements are drawn from
Respondent's plants or outside sources." By hiring
replacements, Respondent discriminated by selecting
employees who will work under the terms and condi-
tions it has imposed while refusing to employ those
employees who are attempting to engage in the pro-
tected and concerted activity of bargaining for a more
favorable contract. Because they have refused to ac-
quiesce to Respondent's terms, the unit employees are
forced into a "one-way" work stoppage. Due to no
action of their own, work stops for the unit employees,
while the Employer is able to maintain production by
employing replacements. Whatever the composition
of these replacements, the net effect and impact on
the unit employees is the same: other employees per-
form their work and receive their pay only because
they would not accede to the Employer's terms.
Not only is the hiring of nonunit in-plant personnel
equally as inimical to employee rights as the hiring of
outside employees, but it indicates a lack of substan-
tial business justification for the lockout. Respondent
is foreclosed from contending it would be unable to
maintain production in event of a strike as it is appar-
ent that the same nonunit employees who continued
production during the lockout could as easily have
maintained production during a strike. Even if the test
of business justification is applied, it is evident that
Respondent has not succeeded in presenting evidence
of legitimate and substantial business justification for
its continued operation during the lockout.
As we believe that Respondent's conduct was in-
herently destructive of protected employee rights and
that, in any event, Respondent lacked a legitimate
and substantial business justification for its conduct,
we would find that Respondent violated the Act.
DECISION
RAMEY DONOVAN, Administrative Law Judge: The charge
was filed on December 20, 1971, by American Federation
of Grain Millers , Local Union 256, AFL-CIO, herein the
Union, against Ralston Purina Company, herein the Re-
spondent , the Company, or the Employer. The complaint
issued under date of February 14, 1972, and alleged viola-
tions of Section 8(a)(1) and (3) of the Act in that Respon-
dent discriminated against its employees by locking them
out while Respondent continued to operate and to perform
the work of the locked-out employees with supervisory and
office personnel . Respondent's answer denies the commis-
sion of the alleged unfair labor practices and alleges as an
affirmative defense that the lockout took place during the
contract negotiations and after an impasse and that
Respondent 's sole purpose in conducting the lockout was to
exert economic pressure in support of its bargaining posi-
tion . The case was tried in Cincinnati , Ohio, on September
20-22, 1972.'
FINDINGS AND CONCLUSIONS
I JURISDICTION
Respondent is a Missouri corporation and is engaged in
the manufacture and sale of animal and human foods at its
Cincinnati, Ohio, plant.
During the past 12 months, a representative period, Re-
spondent had a direct outflow of products, in interstate
commerce, valued in excess of $50,000, which it sold and
shipped directly from its Cincinnati, Ohio, plant, to points
outside the State of Ohio.
Respondent is an employer engaged in interstate com-
merce within the meaning of the Act.
The Union is a labor organization within the meaning of
the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
The Union has been the collective-bargaining agent of
the production and maintenance employees at
Respondent's Sharonville, Ohio, plant, which is also re-
ferred to as the Cincinnati plant, since November 1959.
From that date the parties have had a succession of 2-year
collective-bargaining contracts. The contract that is rele-
vant to the instant case was for the period November 13,
1969, to November 13, 1971. The production and mainte-
nance unit employees at the Plant number approximately
250. The total of all supervisory employees, plus office-
clerical employees, is approximately 62.
Hoese has been vice president of the American Federa-
tion of Grain Millers since January 1959 and, additionally,
assistant to the president since August 1971. As vice presi-
dent, Hoese's duties have included the servicing of the
Federation's local unions in Michigan, Ohio, Indiana, and
the Chicago, Illinois, area. He had serviced the Sharonville
local since its inception in 1959. Hoese testified that since
1959 there had been three strikes at the Sharonville plant,
all relatively recent, and all referred to as "wildcat." One
Respondent's motion to correct the record is unopposed and is granted
Z A "wildcat" strike is commonly a cessation of work without formal union
approval or not pursuant to the union constitution or rules and the inception
of which was not initiated or sponsored by the union or where the work
cessation was engaged in by some or many employees on their own initiative
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such strike was in 1968 and two occurred in 1969. Hoese
stated that the 1969 strike was relative to contract aspira-
tions, evidently a reference to the terms desired in the 1969
-71 contract then being negotiated.' In this connection
Hoese testified that, in 1969, the Union in its contract nego-
tiations at Sharonville was trying "to get more money than
Battle Creek was going to get" and that this wage issue was
a reason for the 1969 strike. The witness further testified:
Q. . . . Mr. Hoese, isn't it also a fact that it has
consistently been the position of this Union that the
wages paid here in Cincinnati [Sharonville] should
equal those being paid at Battle Creek?
A. Yes, sir.
Q. And that has consistently been an objective of
negotiating committees during each contract negotia-
tion here at Cincinnati [Sharonville]?
A. That is right.
B. The Events of 1971 and 1972
By letter of September 6, 1971, from Langford, president
of Local 256, the Company was given notice of termination
of the existing contract on November 13, 1971, pursuant to
the terms of that contract. On October 12, 1971, the Union
gave the Company a list of 50 proposed contract changes.
The first contract negotiating session was held on Octo-
ber 28, 1971. The union group or committee consisted of
Kunz, an International representative of the Union; Lang-
ford, president of the Local; Hardwick, Bales, and Daniels,
vice president, financial secretary, and recording secretary,
respectively, of the local.' Kunz was the chief spokesman for
the Union. As an International representative, Kunz was an
employee of the International Union, the Federation. He
had not previously participated in negotiations at the Shar-
onville plant. The local negotiating committee, which par-
ticipated with Kunz in the negotiations, consisted of
Sharonville plant employees holding office in Local 256 as
described above. The company negotiators were headed by
McIver as chief spokesman. Other company representatives
in the negotiations were Lowe, an attorney in the
Company's labor relations department; Seymour, plant
manager at Sharonville; Bellchamber, production manager
for the Company's Eastern plants, grocery division; and
Maile, personnel manager.6
On October 28, 1971, the parties discussed the Union's 50
proposals for changes in the contract. During the session,
3
McIver, the Company's assistant director of labor relations, testified that
there had been two or three wildcat strikes at Sharonville and that the 1969
episode or episodes were in connection with the contract negotiations in that
year Both McIver and Hoese stated that the 1969 wildcat strike lasted about
2 weeks
4 The reference is to the Company's plant at Battle Creek, Michigan, where
the employees are represented by another local of the Federation Other
plants of the Company where the Federation represents the employees are
at Shreveport, Louisiana, and Lafayette, Indiana
5 Employee Deatherage joined the union committee on November 10.
1971 Vice president of the Federation, Hoese, entered the negotiations on
December 2, 1971, and became the union spokesman soon after
6 The witness who described the negotiating sessions were Kunz, McIver,
and Hoese The latter did not participate until December 2, 1971 Deatherage
also gave testimony regarding certain aspects of the sessions On the whole,
there are not too many conflicts in the descriptions of the negotiations.
McIver stated that the proposals were conflicting and con-
fusing and that he could not understand them all. There was
no agreement on any of the union proposals. The Union
said that before the next meeting it would clarify its propos-
als and record them. Kunz, when asked at the hearing about
any particular items that were discussed on October 28,
stated that he brought up the differences between the com-
pany wages at Battle Creek and at Sharonville. The Union's
position on this matter, as described by Kunz, was rather
definitive. As testified by Kunz,
I stated our position that we wanted equalization with
the Battle Creek plant in the wages, and in our insur-
ance and hospital benefits, S and A benefits [Sickness
and Accident provisions in the contract]
Both parties were aware that equalization between Sharon-
ville and Battle Creek as to wages and certain other benefits
would entail a Sharonville contract hourly increases of 80
cents.7
The next meeting was on November 9, 1971. The Union
presented to the Company a revised set of its proposals.
These 60 proposals were in longhand and covered 10 pages
of legal-sized yellow paper. They were geared to articles and
provisions of the old contract and they constituted proposed
revisions and changes in such provisions.8
For the most part, the union proposals were calculated to
increase existing benefits for employees, such as 12 paid
holidays instead of 10 or to increase vacation rights and
periods, as well as to change the various working conditions.
On wages, the union proposal stated, "Substantial Wage
Increase . Wages be made equal with Battle Creek, Mich."
Since there were so many proposals, it is difficult to char-
acterize them by an all-embracing term. On their face, at
least, some of the proposals appear to be relatively minor
while, others, if seriously pursued, would be of a major
nature . For instance, the old contract in its first section
provided that the Company pledged itself to give its em-
ployees "considerate and courteous treatment;" one of the
written union proposals was to substitute the word "fair" for
"considerate" so that the Company would be pledged to
render "fair and courteous treatment" to its employees. The
old contract specified 8 hours as a day's work and 40 hours
as a week's work, with overtime geared to the foregoing.
One of the union proposals would change the workweek to
30 hours and the day's work to 6 hours and this would of
7 In October 1971, it would have entailed a 40-cent-per-hour increase to
bring Sharonville employees on a par with those at Battle Creek However,
Battle Creek was scheduled, apparently by existing contract , to receive an
additional 40-cent increase on December 1, 1971 Therefore, the Sharonville
contract that was under negotiation for the period after November 13, 1971,
when the old contract would expire, would have to contain an 80-cent in-
crease to equate with Battle Creek for 1971-72 or 1971-73
8 The parties had a history of approximately 12 years of collective bargain-
ing and a series of contracts The expiring 1969-71 contract which, in effect,
they were now renegotiating , has many indicia of a mature collective-bar-
gaining situation Without being a value judgment, this is an appraisal that
the parties were past the stage of being at the barricades, the primitive stage
of employer-union relations For instance, the 1969-71 contract contained a
union-security clause requiring membership in the Union as a condition of
employment, there was also a checkoff provision whereby the Company
checked off union dues from the pay of employees and remitted it to the
Union, there was a grievance procedure ending in binding arbitration, and
there was a no-strike clause The continuation of all these provisions in any
new contract was assumed by both parties although the Company and also
the Union had proposed some procedural changes in the grievance proce-
dure
RALSTON PURINA COMPANY 369
course affect overtime pay .9 With some 60 proposals of a
widely varying nature, it is apparent that not all of them
emerge from the give and take of negotiations as vital and
necessary prerequisites to any contractual agreement in the
minds of the parties.
In describing the November 9 meeting, Kunz stated:
At the session we discussed again at length the differ-
ence between the Ralston Purina plant in Battle Creek
and in Sharonville, emphasizing the wages, hospitaliza-
tion, the S and A and life insurance.
Kunz also stated that at that session the parties discussed
various other proposals of the Union, such as shortening the
probationary period for new employees; changing the start
of the workweek from 7 a.m., Monday, to II p.m. Sunday;
and so forth. One of the union proposals that was discussed
was the Union's desire or claim to represent boilerroom and
supply employees.10
As Kunz testified: "And we arrived at no agreements.
... In fact we arrived at no agreements that day."
The parties met again on November 10. As briefly de-
scribed by Kunz:
. we again discussed our proposals." We also dis-
cussed a little bit on the Company's problems with the
grievance procedure.12
On November 11, the parties again met. Kunz states that
they discussed the Battle Creek and Sharonville differences
in wages and related matters and the Union said that "we
wanted equalization" with Battle Creek "in all phases of the
wages, health and welfare, S and A, hospitalization and
insurance. The Company said that they weren't about to
bring us equal to Battle Creek." The parties discussed the
President's wage-price freeze policy that had gone into ef-
fect on August 15, 1971. McIver said that it was to the
advantage of both sides to reach agreement on a contract
before November 13 when Phase I of the aforementioned
government policy was due to expire and before Phase II on
November 14. McIver mentioned and the Union was aware
that some wages in the industry and in other industries had
been agreed upon in amounts of 7 1/2- and 8-percent in-
creases.
The parties discussed other proposals that the Union had
made in writing to the Company as previously described.
The Company refused to agree to change the probationary
period; to change the start of the workweek; or to change
the shift differentials. The parties discussed the fact, known
to both of them, that at the Company's Lafayette plant a
wage increase in excess of 5 1/2 percent had been granted
to the Union. Also, in Kunz' words, "we discussed other
matters that were in our proposals but we arrived at no
substantial agreements. . . . There was some nonmoney
items proposals that we talked about and agreed upon."13
After the meeting on November 11, McIver telephoned
Kunz that evening and came to the latter's room. McIver
told Kunz that at the negotiating meeting Kunz might have
received the impression that the Company was prepared to
offer a 7 1/2- or 8-percent wage increase. Kunz said he had
such an impression. McIver said that he had come to tell
Kunz that such was not the fact because McIver had just
talked with the Company's main (corporate) office in St.
Louis and he had been told that the Company's policy
"from this point on was going to be 5-1/2 percent and that
will be the tops."14 Kunz mentioned that at the Shreveport
plant a 9-percent increase had been granted. McIver repeat-
ed that from now on the Company's policy was that a 5.5
wage increase was tops.15 However, McIver asked Kunz
whether the Union would have agreed to an 8-percent wage
increase if the Company had offered it. Kunz replied that
8 percent, in his opinion, would have been rejected. McIver
said that it did not really matter because the Company's
position was now that the wage increase has to be no more
than 5.5 percent. Kunz testified that he, Kunz, responded
that the Union and its members "weren't prepared to accept
5 1/2 percent and that the Committee would turn it down,
and it might be possible that we would have a strike at the
plant."
At this November I 1 meeting the Company also gave the
Union a copy of a document entitled "Improvements in the
Purina Health Plan" that it proposed or intended to place
in effect.16 At the end of the meeting the Union told the
company representative that it believed that a Federal med-
iator should be brought into the next meeting on November
11.
At the start of the next meeting on November 12, McIver
told the other members on the union negotiating committee
13 Kunz stated that on one nonmoney item agreement was reached but the
Union changed its mind thereafter and at the next meeting "it was no longer
agreed upon "
14 McIver testified that on the late afternoon of November It, Shobel, the
Company's director of labor relations, telephoned him from St Louis and
informed him that the Company's policy from here on would be to abide by
the Pay Board guidelines since the guidelines were now quite clear
15 McIver testified that when the Union raised the matter of the substantial
wage increases at the Shreveport and Lafayette plants, the Company's posi-
tion was that the increases were in prior existing contracts and therefore
justified because not subject to the 5 5 guidelines of the Pay Board As a
matter of Pay Board law or rule this position may be debatable but I do not
undertake to decide the issue Whether the Company's position was correct
or not I assume that the Pay Board polices its own rules and takes action
accordingly No evidence on this aspect of Pay Board action or approval or
disapproval regarding other plants appears in the instant record
16 Some improvements were
For instance :
Hosp . Rm. & Bd .
Current
Semi-pvt. 70
Hosp . Special Fees
days
$150 plus 75%
9 This was not retained among the group of 2 dozen or so proposals that
the Union was still urging at a later stage in the negotiations.
10 On its face this type of proposal or claim to represent unrepresented
employees could involve representation issues of unit , accretion or nonaccre-
tion to the existing unit , NLRB involvement, and so forth
it On the proposal to represent the boilerroom and supply employees, the
Company said that it would only recognize the Union for these people if the
Union won an election in that group
12 The Company was unhappy about what it considered to be an inordi-
nately high number of grievances filed under the old contract and the per-
centage thereof that had to go to arbitration.
of next $1,200 of next $1,200
Drs. visits in hosp . $4 per visit - $6 per visit-
$124 max . unlimited
Surgical - in hosp . $400 $600
out of hosp . $400 $600
Ma or medical
Lifetime max. $10,000 $15,000
Annual max. $ 5 ,000 no max.
Improvements
90 days
$150 plus 80%
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of his conversation with Kunz the preceding night. McIver
reiterated what he had told Kunz, emphasizing that the
Company's position was that the wage increase had to be 5.5
percent and this was a corporate decision and McIver could
not change it. According to Kunz, he and the union commit-
tee then "told him [McIver] that we still wanted equalization
with Battle Creek [on wages]; that we also thought our
health and welfare, S and A, and life insurance should be
brought in line, too." Kunz states that the parties "again
discussed a lot of proposals" and the Union withdrew some
of its demands and agreement was reached on "some non-
economic items."
At the November I1 meeting or possibly at both the
November I 1 and 12 sessions, the subject of a strike arose.
Kunz, as we have seen, told McIver, on the evening of
November 11, when the latter had told him that a 5.5 per-
cent wage increase was the Company's firm top figure, that
it was possible that there might be a strike because the
Union was not prepared to accept 5.5. The Company had
also been informed on November I I by the Union that a
union membership meeting had been scheduled for Satur-
day, November 13, the date when the old contract expired.
In this context of announcement of the union meeting,
Langford, president of Local 256 and a member of the
Union's negotiating committee, had stated in the negotiat-
ing meeting with the Company that "If there's no contract,
we might have a strike," or, had stated that, if there was no
agreement or contract reached b^ November 13, "you [the
Company] could have a strike." I According to Kunz, other
members of the union committee also audibly spoke of the
possibility of a strike on these occasions. McIver testified
that Langford had said that if there was no contract there
would be no work. Deatherage, an employee who entered
the negotiations as a union committeeman on November
10, testified that, at the November I1 session, in a context
of the Union's refusal to accept what the Company was
offering in a contract, McIver expressed company concern
about a wildcat strike. In Deatherage's words, "I believe he
stated that they were afraid of a wildcat strike" and McIver
referred to two prior wildcat strikes at the plant. Deatherage
states that Kunz replied that in the event a strike vote was
taken "or a strike did occur" the Union would give the
Company 24 hours' notice so that there could be a proper
shut down of the plant or would give additional time if the
Company requested it. Since a wildcat strike is by definition
a strike without union authorization and presumably with-
out union preknowledge, it is not clear that such an assur-
ance of 24 hours' notice, by the Union, would obviate
concern about a wildcat strike. Kunz' testimony, in effect,
is that, whenever the matter of a possible strike was raised
in the negotiations, he assured McIver that the Union would
give 24 hours' notice and more, if requested, to insure an
orderly shutdown of the plant. McIver denies that such an
assurance was given at the times described by Kunz or
during that period of the negotiations. While the foregoing
aspect is not free from doubt, I have found Kunz to be a
basically reliable witness and I am prepared to credit him
that he did give the assurance as he claims to have done.
A matter that is not disputed and which is admitted by
17 Both versions are in Kunz' testimony.
both parties is that on November I I McIver asked the
Union to enter into a stipulation to extend the about to
expire contract for an interim period of time. The contract
that was thus sought to be extended contained a no-strike
clause. He stated to the Union that the Company felt that
the parties should continue working during negotiations for
the new contract. McIver's credited testimony is that Lang-
ford stated that there would be no extension of the contract
and no work after the end of the old contract; several other
members of the union committee commented, no exten-
sions, no contract, no work. Kunz states that he believes
that Langford made a statement to the effect that if there
was no contract there might be a strike. Kunz testified that
he, Kunz, told McIver that the Union would not agree to
an extension of the contract but that "we would work on a
day to day basis . . . if the Union would decide to strike we
would give the Company sufficient notice to shut the plant
down because . . . neither I or the Company knew what the
people [the employees] were going to do. I mean neither I
nor the Union [Committee] knew what the people were
going to do...."
A good portion of the meeting of November 12 was spent
with the parties being in separate rooms and with the media-
tor talking to them separately and then going back and forth
between the two. Although not an invariable hallmark, I
regard the invocation of this mediatory technique of sepa-
rating the parties as some indication that they. had reached
a point of .difficulty in agreeing on further contract provi-
sions by means of continued face-to-face discussion across
the table.
On November 12, just before the lunch recess and after
lunch, the union committee received from McIver a total of
two documents. One, a three-page typewritten document
entitled "Letter of Intent" was, apparently, transmittedjust
before lunch, and the other a one-page longhand document
entitled "Employer offer" was handed over after lunch. This
"Letter of Intent" states that during the November 1971
contract negotiations the Company made the "following
supplemental commitments" to the Union. Mention is
made of improvements in the Health Plan. Then follow two
pages of detailed language regarding job bidding proce-
dure; and a page devoted to provisions of a "Workmen's
Compensation Supplement." The "Employer Offer" docu-
ment lists five items:
1. Term 2 years November 14, 1971 to November 18,
1973
2. Language proposal attached
3. Work rules as in old contract
4. Wages
Effective Nov. 14, 1971-5.5% [ increase]
Effective Nov. 14, 1972-5.5% [increase]
It is then stated that if, during the term of the contract
the guidelines of the Pay Board should change so as to
allow greater wage increases than 5.5 percent, "such
increases up to total increases of 8% each year [of the
contract] will be placed into effect automatically"
5. Letter of intent dated Nov. 12, 1971
Kunz testified that, when McIver handed the Union the
above document, McIver said that it provided for a 5.5 wage
increase for each year of the contract and up to 8 percent
in the second year if the Pay Board guidelines were changed
RALSTON PURINA COMPANY
to allow it. Kunz states that he and the union committee had
only glanced at the written "Employer Offer" given to them
by McIver on November 12 and between that time and the
union meeting on November 13 they had not read the of-
fer.18
At the November 12 meeting, after the Union had re-
ceived the written company offer, it informed the mediator
that it would make a counterproposal and would give it to
the Company as soon as possible. The parties were in recess.
About 2 p.m. the mediator informed the union that the
Company's representatives would have to leave about 3
p.m. to catch a plane flight. Kunz said that the Union could
not complete its counterproposal by that time. About 3:30
p.m. the mediator informed the Union that the Company's
representatives had left for the airport. The Union said that
it had not yet completed its counterproposal but that it
would mail the mediator a copy.
The Union's counterproposal consisted of 24 items and
ranged from the first two proposals for a 1-year contract
and "wage equalization with Battle Creek, Mich." to item
24, "Complete revision of work rules and penalties as pro-
posed by the Union." Without undertaking to compare the
opposite company and union positions on each of these 24
counterproposals, we can briefly note that the Company's
proposal was a 2-year contract as had been the case in all
prior contracts; on work rules the Company's November 12
proposal was "work rules as in old contract;" wages equali-
zation with Battle Creek had been a consistent union de-
mand since the beginning of the 1971 negotiations and had
been firmly rejected by the Company throughout; the Com-
pany had offered a 5.5-percent wage increase and had said
this was tops and was firm under company policy and the
Pay Board guidelines, albeit the Company would automati-
cally grant an 8-percent increase in each year of the contract
if the Pay Board changed its guidelines. As recently as the
November 12 meeting Kunz had told the Company "we still
wanted equalization with Battle Creek." Regarding the 80
cents per hour that equalization would entail, Kunz stated
that on November II and 12 the Union said , "why doesn't
the Company grant us this amount and let the Pay Board
turn us [it?] down...." This was not acceptable to the
Company.
As had been requested by the Company on November 12,
when it submitted its contract proposal to the union com-
mittee, the committee submitted the Company's proposals,
including wages , to the scheduled union membership meet-
ing on November 13. Although, inter alia, the Company had
submitted a complete contract document to the Union on
November 12 this was not read or reported on at the meet-
ing, according to Kunz, except for the comment that there
18 It is my opinion that Kunz misunderstood what McIver had stated orally
about the written wage offer of the Company. The written offer that McIver
gave to the Union stated clearly that an 8-percent increase would become
effective automatically in each year of the contract if Pay Board guidelines
permitted it. I perceive no reason why McIver while handing the Union such
a written offer would have downgraded it by saying that the 8 percent would
apply to only the second year of the contract This is particularly true since,
in my opinion , the Company was trying to put forward what it considered
to be its best foot and was endeavoring to secure union agreement on the
important wage issue . McIver had no reason to believe that the Union would
not read the written wage offer that was given to it and that offer was 8
percent for both years.
371
had been some changes. Kunz and the union committee
recommended rejection of the company proposals and they
were rejected at the union meeting. A motion was made and
passed that the committee continue negotiations. There was
no strike vote.
Regarding Kunz' testimony that the union committee
recommended rejection of the Company's proposals at the
November 13 meeting, he was asked:
Q. [The committee recommended rejection] primar-
ily because of the Company's wage offer. Didn't it?
A. Well, that and some of the conditions on the
health and welfare and the S and A. Wages was the
primary interest, however.
s
Q. So, then the majority of your time at this mem-
bership meeting was concerned with the wages. Isn't
that right?
A. This is what the people were interested in.
After November 13, McIver was notified by the mediator
that there would be a meeting on November 22. This meet-
ing was not held. Although he could not remember the date,
Kunz states that the mediator, sometime after November 13
and before December 2, had called him about a particular
meeting date. Kunz advised the mediator that he could not
meet on that day because he was taking his wife to the
doctor. In any event, after November 13, the parties first
met again on December 2, 1971, at the instance of the
mediator.
On December 2, Hoese first entered the negotiations and
participated for the Union together with Kunz and the
union committee. The Company's team was the same.
At the December 2 meeting, the 24 proposals, described
above, that the Union had completed and had mailed to the
mediator after the November 13 meeting, were presented to
the Company. Kunz was the Union's spokesman until
sometime in the afternoon when Hoese took over, although
Kunz continued to participate.19 On two items the Union
agreed to go along with the Company's position and on two
of the Union's proposals the parties reached agreement. As
stated by Kunz, "and during that session that was about all
that did happen, except we got in a lot of discussion about
equalization with Battle Creek...... On the matter of wage
equalization with Battle Creek the Union said it would ac-
cept a 2-year contract and would go along if the contract
contained the 5.5 wage increase each year but with agree-
ment therein for a 50-cent wage increase each year and the
Company's agreement that it would join the Union in peti-
tioning the Pay Board to allow the 50-cent increases each
year rather than 5.5 percent.20 The Company asked for a
recess. The Company came back and gave the Union a
written proposed contract. The Union was informed by the
19 Both Kunz and Hoese testified regarding the December 2 meeting
20 A 50-cent-per-year increase each year would total $I To compare the
Company's offer of a 5 5-percent increase each year with the Union's 50-cent
proposal per year, we have averaged the wage ratey in the expired contract
The average is $3 95 per hour The highest rate was $4 81, the lowest was
$3 65 Using a round figure of $4 per hour a 5 5-percent increase would be
22 cents on the average as compared to the Union's demand of 50 cents
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company that it was not going to offer more than the 5.5-
percent wage increase and would not join the Union in a
petition to the Pay Board.21 The Company said that the
contract proosal that it had given the Union was its final
offer and that if it was not accepted by midnight, Saturday,
December 4, it would be withdrawn and that the employees
would be locked out on Monday, December 6. Hoese said
that he thought there was still room for movement in the
negotiations and the Union wanted to continue negotia-
tions. The Company did not alter its stated position. At the
request of the mediator the parties agreed to meet on De-
cember 3.
On December 3, when the parties met, Hoese asked the
Company if its position remained the same as on December
2. The Company said that was still its position and reiterat-
ed its contract proposal, as a final offer, and the statement
that there would be a lockout if the Union did not agree by
midnight, December 4. Hoese said that there was still room
for movement and the parties should try to reach agree-
ment. McIver asked about the Union's contract demand for
greater vacation benefits. Hoese said the Union would drop
the vacation demand if there was movement by the Compa-
ny on other items. McIver said that the Company had gone
as far as it could and said that under the Pay Board guide-
lines the Company could not offer more than the 5.5 per-
cent. Hoese said the Company and the Union could
negotiate an increase of more than 5.5 and then petition the
Pay Board to allow the higher amount. McIver said that the
Company was not willing to do this. Hoese said to McIver
that on November 11 the Company had offered 9 percent
at the Shreveport plant and more at other places; and that
General Mills and Pillsbury, with whom the Union negoti-
ated, were joining the Union in petitions to the Pay Board
to allow larger pay increases. McIver said that the
Company's situation was not the same as those other com-
panies that might have had tandem arrangements between
plants. McIver said that the Company felt that there was
"absolutely no justification" for it going to the Pay Board
and offering increases equal to its Battle Creek plant or
equal to General Mills.2 Hoese was critical of the Pay
Board guidelines and, in effect, said that they were not
determinative and did not mean a thing.
The meeting ended, and, by no one involved , including
the mediator, was there any "mention of any future negoti-
ating meetings ...." 23
As was known to both parties, the Union, on December
2, had scheduled a membership meeting for December 4,
Saturday. At the meeting, the Company's proposal of De-
cember 2 and 3 was presented to the membership. Hoese,
21
As we have seen, the Company's offer was and remained a wage increase
of 5 5 percent each year of the contract and 8 percent each year if the Pay
Board changed its guidelines to allow more than 5 5
22 The Shreveport plant and the Lafayette plant situations had been raised
and discussed , as we have seen, in sessions prior to December 3 and the
Company's position was that those plants involved preexisting contracts and
that the situations were therefore different from the Sharonville matter
23 Hoese testified that , in a recess with the mediator during the December
3 meeting, the Union said that it would accept a 45-cent increase each year
of the contract but that if the Company did not agree the Union would go
back to its 50 cents and 50 cents demand There is no evidence that this
45-cent proposal was conveyed to the Company or, if it was, that it was or
might have been acceptable
Kunz, and the union committee were present. Including
Hoese and Kunz, the committee recommended rejection of
the proposals and the meeting so voted. At this point in the
foregoing testimony of Kunz he was asked:
Q. It was primarily because of the Company's wage
position, wasn't?
A. That was one of the major reasons, yes.
I and Frank Hoese spoke, recommended turning
down Company's offer, it was on money but it wasn't
the amount of money. We said the Company was refus-
ing to bargain in good faith and that the Company had
made no counterproposals.
Q. Had made no what?
A. No counterproposals to our 50-50 [50-cent wage
increase each year of the contract]; that they had stuck
flatly to 5 1/2 percent. [The witness also mentioned
that the membership had been told of the Union's pro-
posal that the Company jointly petition the Pay Board
to approve the 50-cent increase per year.]
On December 4 about 10 a.m., the Union informed the
Company that its December 3 contract proposals had been
rejected. The Company then notified its employees in per-
son and by telephone not to report to work on Monday,
December 6. Employees who appeared at the plant were
told that no work had been scheduled for them.
The lockout continued from December 6. There was no
picketing during the lockout. The instant charge was filed
on December 20, 1971. During the lockout neither party
sought, or offered, to resume contract negotiations or made
contract proposals, amended or otherwise. The Company
issued no termination notices or other personnel actions
regarding its employees. On December 21, on application of
the locked-out employees, the State of Ohio held that they
were entitled to unemployment compensation for the week
ending December 11. On December 28, the Company, in
effect, appealed this ruling.24 Final determination affirming
the initial ruling was made between January 10, 1972, and
March 1972.
The Sharonville plant normally processed, manufactured,
and shipped, before the lockout, Dog Chow, Wheat Chex,
Rice Chex, Corn Chex, Sugar Chex, and Freakies. There are
differences in the processing of these various products. The
products with the exception of Sugar Chex and Freakies, are
also processed, manufactured, and shipped at other plants
of the Company.
Sales of Sugar Chex total about $1 million annually but
this is relatively low compared with other products of the
Company. Sugar Chex's competitive position in the cereal
market is tight and marginal and it occupies a small percent-
age in the cereal market.
Freakies is a new cereal developed by Respondent. It has
been in the development stage since about June 1971. Spe-
cially designed manufacturing equipment peculiar to this
Freakies product cost about $500,000 and was installed in
24 In Ohio, unemployment compensation is based on an employer tax
which varies according to the number and size of claims made by its employ-
ees
RALSTON PURINA COMPANY 373
the Sharonville plant. Operational difficulties were encoun-
tered and design or functional "bugs" caused breakdowns
and other results that required correction. Marketing plans
were and had to be relative to what was being attained or
encountered on the plant operational level. The Freakies
program had reached the point where it was planned to
market the product, beginning November 29, 1971, in two
test locations, Columbus, Ohio, and Denver, Colorado. The
planned "pipeline" for the foregoing was to be 6,000 cases
of the product by the end of November 1971.25 Principally
because of production problems with the new Freakies
equipment and machinery, only slightly more than 2,000
cases of salable Freakies were produced in November 1971.
The Sharonville production and maintenance unit of em-
ployees represented by the Union consisted of 250 employ-
ees. The supervisory and office staff was 62 persons. During
the lockout no new employees were hired, temporary or
otherwise. In the period of the lockout 46 of the supervisory
and office people were utilized to carry on production of the
two products, Sugar Chex and Freakies, that only the Shar-
onville plant produced.26 Corporate management, with ex-
pective management staff input, had decided that the two
aforementioned products required continuity of production
at Sharonville. It was believed that Sugar Chex, because of
its marginal and competitive position in the market, re-
quired continued viability and presence with customers, or,
more concretely, that if Sugar Chex lost its visibility on such
portions of retail store shelves as its marginal position was
maintaining, it would suffer a major or perhaps a fatal
setback in the marketing scramble of competing products.
The Company also decided that the newly launched Freak-
ies production and marketing program was at a point where
continued production was necessary and Sharonville was
the sole plant equipped to produce this product that was
already into its campaign for market acceptance.
On Wednesday, December 29, 1971, the Company rein-
stated its contract proposals that had been given to the
union on December 2-3 prior to the lockout. The Company
also advised the Union of its intent to terminate the lockout
and that the employees could return to work on Monday,
January 3, 1972. The parties met on December 29 and 30.
In describing these sessions, the Union's brief to me, aptly
states that "During the ensuing two days, the parties re-
mained apart on wages primarily." Both parties indicated or
made offers on the wage issue that showed some yield in
their respective positions. The Company's written offer on
December 30, included 5.5-percent wage increases each
year of the contract and up to 8.5 percent each year auto-
matically if the Pay Board guidelines changed to allow in-
creases above 5.5 percent. The Union proposed an
11-percent increase each year with 5.5 being placed in effect
immediately and with an appeal to the Pay Board for allow-
ance of the balance. No agreement was reached.
On Sunday, January 2, 1972, at a union meeting, Hoese
25 Server, the Company's manager of inventory and production planning,
testified that the term "pipeline " covers inventories in the retail store, the
chain warehouse, and the Company's warehouse. The volume as determined
by the Company was to be 6,000 cases , based on anticipated sales, to cover
the pipeline requirements.
26 The balance of the staff performed their normal duties.
testified that he recommended rejection of the Company's
proposal dated December 30 and he made the recommen-
dation because the proposal did not contain enough money.
The meeting voted to strike and the next day, January 3, the
employees did not go to work as had been offered by the
Company. The strike and picketing commenced on Janu try
3 and continued until February 23 when the parties reached
agreement on a contract. All the strikers were returned to
work when the dispute ended.
On January 12, 1972, a letter signed by Seymour, the
Sharonville plant manager, was sent to all employees. The
letter stated that the labor dispute "has already cost the
average employee over $1,000 in lost wages, and unless the
matter is settled soon, more serious and lasting conse-
quences may result which could adversely affect all employ-
ees." The history of the negotiations, as described, included
the Company's wage offer of November 13, the 5.5-percent
increase each year, and the contingent 8 percent. Continu-
ing, the letter asserts that "there was a complete impasse on
the wage issue" and "In order to prevent spoilage of in-
process production in the event of a strike on short notice,
the Company informed the Union that the offer would be
withdrawn if not accepted by . . . . December 4, and no
work would be scheduled for the following Monday." The
letter then set forth the most recent offer to the Union on
December 30. The letter said that it was company policy to
pay fair and competitive wages and that "you and ourselves
are locked into the wage situation by government controls."
The concluding note was to urge employees to have their
union officials call a meeting so that acceptance of the
contract proposed by the Company could be voted "and
stop this senseless loss of income."
On December 20, 1971, the instant International union,
the Federation, had filed with the Board a petition for certi-
fication at the Company's Clinton, Iowa, plant. An election
had been scheduled by the Board for January 21, 1972, at
the Clinton plant. At Clinton the Company was opposing
the effort of the Union to obtain certifications at the plant.
On January 17, 1972, the Clinton plant manager sent a letter
to the Clinton employees. The letter referred to the impend-
ing Board election. The letter, inter alia, listed what the
employees had attained at Clinton without a union; e.g.,
wage rate increase of 22 1/2 percent, fringe benefits, and so
forth. Then, "what does union representation mean?
1. Dues initiation fees, assessments, fines... .
2. Strike possibilities. The employees at the Ralston
Purina Company Cincinnati [Sharonville] plant have
experienced a work stoppage since December 3. A let-
ter was sent to the employees at the Cincinnati on
January 12, 1972. [Then follows an excerpt from the
January 12 Sharonville letter. The letter has been de-
scribed above.]
The excerpt read:
The labor dispute which has halted normal production
at the Ralston Purina plant, Sharonville, Ohio, has al-
ready cost the average employee over $1,000 in lost
wages, and unless the matter is settled soon, more seri-
ous and lasting consequences may result. . . . [The
next excerpt from the January 12 Sharonville letter sets
forth the Company's contract wage proposal to the
Union at Sharonville.]
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Clinton letter continues and states that the
Government's guidelines are 5.5 percent and that the Union
at Sharonville "is seeking to coerce and force the Company
to violate the guidelines.... " The concluding position of
the Clinton letter is, "I ask you to vote for the Company on
Friday. Vote no [as to desiring the Union as bargaining
representative]." 27
The General Counsel and the Union contend that the
Clinton letter, and its reference to the Sharonville situation
and as explicated in the quoted Sharonville letter, demon-
strates that "the sole purpose of the letter was to `chill un-
ionization at the Clinton, Iowa plant, and truly
demonstrates Respondent's union animus as well as its real
purpose in locking out its employees [at Sharonville] and
continuing operations thereafter with replacements." 28 The
Union's brief also argues that the Company "hoped that the
lockout would have a dampening effect on the Clinton em-
ployees' enthusiasm for the Union" and that "it is reason-
able to infer that the lockout was motivated by the desire
to use the lockout for that purpose."
Concededly, it is very difficult to argue convincingly that
the Company announced an intention to lock out the Shar-
onville employees unless the Union accepted the
Company's contract proposals and did lock them out when
the proposals were rejected, all in order to chill a union
organization drive at Clinton. The union petition at Clinton
was not filed until December 20, 1971, well after the fore-
going events at Sharonville. The Company's alleged antiun-
ion motivation at Sharonville in putting the lockout into
effect had been, of course, completely defeasible if the
Union had chosen to accept the Company's contract pro-
posals. This, presumably, would have deprived the Compa-
ny of the opportunity to later tell the Clinton employees or
employees at other plants that the Sharonville employees
had been locked out as a consequence of their union affilia-
tion and activity. Moreover, although the theory is that the
lockout was conceived and later activated from a desire to
chill unionism at Clinton or elsewhere, the evidence, in my
opinion, shows that the Company at Sharonville was highly
desirous that the Union would agree to the contract propos-
als at Sharonville rather than to choose the lockout alterna-
tive. And agreement at Sharonville would have meant an
intact union at Sharonville, with a union-shop contract con-
taining a 5.5-percent wage increase and other improve-
ments. This result would be a poor weapon for the
Company for the chilling of unionism at Clinton and would,
of course, have also deprived it of its alleged illegally moti-
vated lockout weapon as a tool for chilling unionism at
other plants.
Further, the Clinton management letter to the Clinton
employees and the excerpt of the Sharonville letter that the
Clinton letter quoted, both described the Sharonville situa-
tion as a "work stoppage" and there was no mention of a
lockout. To employees at Clinton, Iowa, and to anyone not
familiar with the actual facts at Sharonville, the term "work
stoppage" would ordinarily be interpreted as meaning a
27 The Union lost the Clinton election 93 to 86 The Union filed objections
to the election . A hearing on the objections was directed by the Board but
the hearing was not held because the Union withdrew its objections
"GC br
strike. If the lockout was conceived and intended as a potent
weapon to chill unionism at any plants such as Clinton, it
is not easy to understand why the Sharonville situation was
described in the Clinton letter as a work stoppage and not
as a lockout or as a lockout initially. Indeed, far from believ-
ing that the Sharonville lockout situation would convey the
intent and effect of chilling unionism, the Union evidently
believed that the full Sharonville facts would, if made
known to the Clinton employees, have no such effect and
would presumably not be detrimental to the Clinton union
movement. This for the reason that on January 18 the
Union informed the Clinton employees that on that evening
Kunz would be in Clinton to give them the facts and answer
any questions about Sharonville. Quite apparently this
meant, inter alia, that it would be the Union, through Kunz,
that would reveal that at Sharonville there had been a lock-
out and this, far from chilling the Union, had been followed
by a current union strike.29
The Clinton letter, in my opinion, shows that the Compa-
ny was opposed to the union organization of its Clinton
plant and was urging those employees to vote against the
Union in the election. The arguments used were the assert-
edly existing good conditions of employment at Clinton and
the disadvantages of union representation, such as dues
other fees and "strike possibilities" such as at Sharonville
where the "work stoppage" and "labor dispute" had result-
ed in lost wages.
I do not find that the Clinton letter matter furnishes
persuasive or convincing evidence that the earlier Sharon-
ville lockout was illegally motivated or that the letter fur-
nishes a reasonable basis for drawing such an inference.
Conclusions
Evidence as to the reason or reasons for the lockout is to
be found in the record and, like other evidence, is to be
evaluated by the trier of fact. I have rejected the Clinton
letter aspect, above, as persuasive evidence of the
Company's antiunion motivation in the Clinton lockout.
Other evidence on the reasons for the lockout is to be found
in testimony by Kunz and Hoese as to remarks by McIver
during negotiations and in testimony by McIver and Ingra-
ham, vice president and director of production, grocery
products.
As I view the evidence, the parties were deadlocked on
the matter of wages. The Company was firm on its wage
offer and had determined that it would go no higher. This
position was based on two factors. One, the belief that the
5.5-percent increase was a maximum limit under the Pay
Board guidelines; and, second, the Company's unwilling-
ness to agree on a contingent or any other basis to an
29 One of the Union's objections to the Clinton election was that the
Clinton letter to employees had "misrepresented the fact that employees at
the Company's Cincinnati [Sharonville] plant have been on strike since De-
cember 3, 1971, when, in fact, employees were locked out and did not strike
until January 3, 1972 " We have therefore the strange situation of the Compa-
ny that allegedly conceived and intended the lockout as a weapon to chill
unionism at other plants, including Clinton, not only not saying or intimating
that a lockout had been used but allegedly concealing or misrepresenting the
fact at Clinton, where the first opportunity presented itself for warning
employees that if they voted for a union they might be subject to a lockout
as had happened at Sharonville
RALSTON PURINA COMPANY
increase of the size that would bring the Sharonville rates
to equality or close to equality with the Battle Creek rates.
The Union was equally firm that steps were possible to alter
the alleged immutability of the guidelines and that , on even
a contingent basis, it found 8 percent totally unacceptable.
The lowest offer communicated to the Company by the
Union on a contingent basis was a 50 -cent wage increase
each year which would total $1 in the life of the contract.
This figure bore the unmistakable overtones of the Union's
long held and often expressed demand for closing the wage
gap with the Battle Creek plant. Although there were a
substantial number of other union contract demands on
which the parties were apart and, although the union said
that it believed that the parties were capable of making
movement or progress , the Union never indicated , as late as
December 3, that even total resolution of all items (a diffi-
cult prospect ) would alter the Union's wage position.30
The Company, in my opinion, correctly viewed the con-
tract negotiations as deadlocked on the wage issue and that
this situation foreclosed the consummation of a contract.31
I believe that the Company desired to reach a contract
agreement with the Union as soon as possible and thus
settle , as much as a contract can settle , its management-
union program for the next 2 years. The deadlock or im-
passe on the wage issue which was the crux of the difference
between the parties could only be solved by the Company
offering more and the Union accepting less than their re-
spective proposals, probably both, but possibly either. The
Company, as far as the record shows, knew or had de-
termined that its wage offer was final and as far as was
30Cf Pool Manufacturing Company, 70 NLRB 540, 549, 339 U S 577,
where it was said - . one of the reasonable methods by which such an
agreement might have been reached lay in the possibility that either the
respondent or the Union might retreat from its seemingly inflexible position
on the wage issue because of concessions given or taken on items other
than wages .. Indeed, the possibility that such negotiations might result
in the Union relaxing its demands on the wage increase was presented
squarely by Biggerstaff who said, 'Mr Trau, if we got a good contract
out of you, you might be surprised at what we would tell you about the
wages ' " " In the previous meetings Miller [Umonl had indicated a willing-
ness to modify his wage demand if Ryan [Employer] would make some offer
above $1 required by law," Held, that Ryan's refusal to meet with the Union
"in view of Ryan's admission of the possibility of agreement being reached
on a rate above the $1 offered" was a refusal to bargain since "there is no
telling to what extent the Union and/or the Respondent might have been
willing to modify their position on wages " Chambers Manufacturing
Corporation, 124 NLRB 721, enfd. 278 F 2d 715 (C A 5, 1960) In Sharon
Hats, Incorporated, 127 NLRB 947, 956, enfd 289 F 2d 628 (C A 5, 1961),
the Decision observed, inter aha, that "As to the money items, the Union's
withdrawal of one item " and its letter that "implied a willingness to make
further concessions . in return for company concessions on wages, holi-
days or concessions in its economic demands in return for company
concessions on other issues .." warranted a finding that the Company had
refused to bargain in failing to meet further with the Union
The above three cases have been cited in the Union's brief in support of
its contention that there was no impasse . In my opinion the facts in the cited
cases are distinguishable from those in the instant case . In the latter neither
party indicated a willingness to play in the same ball park on the wage issue
regardless of the possibility of agreement on some other items . The Company
did not indicate any possibility of change in its firm wage offer and the Union
consistently rejected such an offer Other than its rejected 50-cent offer which
was far apart from the Company' s offer, the Union never indicated a willing-
ness to accept anything approximating the Company's "final offer." The
Union's reference to movement in negotiations gave no indication that it was
proposing or would propose anything new on the wage issue.
3 This statement and what follows is the result of my appraisal of the
evidence in the record
375
discernible the Union was equally firm that the Company's
wage offer was not one that it would accept. Further, the
parties were not only apart on the wage issue but they were
so far apart that the prospect of agreement without the use
of a catalyst was negligible. Since the old contract had ex-
pired on November 13, 1971, and in view of the impasse
aforedescribed, it was reasonably apparent that the normal
and predictable catalyst in the situation described would be
a strike by the Union.
There was no way for the Company to determine when
a strike would occur. The strike could be a wildcat and such
a strike by its nature was an unpredictable factor. The strike
could be an authorized strike in accordance with union
rules. Obviously a sudden strike would be more damaging
than a strike with reasonable notice. This plant, however, in
my opinion, was not as vulnerable as are plants in some
industries to sudden strikes or strikes on relatively short
notice. I do not believe that the Company considered that
by early December a strike was imminent in the sense that
it was about to occur immediately. The Company did not
know when a strike would occur. But, in my opinion, the
Company believed that a strike was imminent in the sense
that the real likelihood of a strike was overhanging the
impasse on the wage issue. It is my opinion that when the
Company, on December 2-3, made its wage proposal and
coupled it with the statement that if the offer was not ac-
cepted on December 4, the employees would be locked out
on Monday, December 6, there were four possibilities that
it could and did most reasonably expect: (1) the Union at
its December 4 meeting would accept the Company's wage
proposal; (2) the Union would decide to recede from its
prior and current wage demands and offer a counterpropo-
sal; (3) the Union would reject the Company's wage offer
and vote to strike; and (4) the Union would reject the
Company's offer and see if the Company would actually
place in effect the lockout and, if the Company did lockout,
the Union was prepared to undergo a lockout.
The optimum result, from the Company's standpoint, was
(1) above, firmness of the Company's wage position and its
expressed views about the wage guidelines and its position
on contingent wage amounts. A union counterproposal,
therefore , unless it was almost in line with the Company's
offer would not be acceptable and it was unlikely, from all
past indications, that such a counterproposal would be
forthcoming. Absent (1) above, which would have mooted
all other possibilities, the most realistic prospects were (3)
and (4), a strike or a lockout.
Both a strike and a lockout involve economic pressure
applied by an employer against a union and a union against
the employer. The effectiveness of the respective actions will
generally vary according to the circumstances in the partic-
ular strike or lockout. In the instant lockout conducted by
the Company, the Union and the employees were subjected
to the economic pressure of loss of wages. They would have
been subject to the same pressure in the event of a strike.
As to the Company, it was subjected by the lockout to the
economic pressure of having its plant production materially
and adversely affected. This was because it chose to hire no
outside replacements but undertook to produce only two of
its normal six products. Obviously, if 46 supervisors and
office people that the Company used during the lockout
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could operate the plant as efficiently and profitably as 250
employees, the Company would never have determined that
250 was the normal and necessary complement and the
plant would have had a normal complement of about 50 or
slightly more. The 46 supervisors and office people could
not produce what 250 regular employees normally pro-
duced. They could not do it in the short run and certainly
not over any extended period of time. The Company knew
this, the Union knew this, and the employees knew it. The
lockout, therefore, resulted in actual and in known econom-
ic pressure against the Company. The same type of econom-
ic pressure would have been incurred by the Company
during a strike. In fact, during an economic strike the Com-
pany might have incurred less economic pressure than it
incurred by the type of lockout it conducted. In a strike, the
Company could legally hire permanent replacements for the
strikers. If it hired enough competent replacements, its pro-
duction might be only minimally affected; moverover, if it
entertained any antiunion motivation, permanent replace-
ment of the strikers might have been an effective means of
destroying the Union's strength, or even the process of hir-
ing permanent replacements during the strike is an added
pressure against the strikers since in addition to loss of
wages they envisage the prospect of loss of their jobs to
newly hired replacements. No such pressure was present
during the instant lockout since no replacements were hired,
temporarily or permanently.
Since the Company had concluded that in view of the
status of the contract negotiations only economic combat,
i.e., a strike or a lockout, would serve as the necessary
catalyst for agreement, the question is why did it choose the
lockout. Why did it not await a strike. The Union had not
voted to strike on December 4 but the Company believed
that the Union would strike, absent acceptance of the
Company's wage proposal, and in view of the Company's
firm adherence to its wage position. Further, it was believed
that the Union would strike at a time suitable to the Union
and, if possible, least suitable to the Company. The Compa-
ny, as I view the evidence, chose the lockout for economic
and business reasons and with the hope that it would result
in a contractual agreement as proposed by the Company.32
By choosing the lockout, the Company selected the time
of economic confrontation with the Union rather than leave
the choice of time to the Union in a strike. Although, by
choosing the lockout, the Company, in effect, relinquished
the right to permanently replace the locked-out employees
during the lockout (a right it would have had in a strike),
it, in all other respects but one, the timing, brought into
being the same economic combat that would have charac-
terized a strike; i.e., the employees were affected by loss of
wages and the Company was affected by decreased produc-
tion. As in a strike, the Company, in the lockout, could and
did carry on some production with its supervisors and office
32 I make no judgment on the merits of what the Company offered or of
what the Union wanted in a contract There were no doubt facts and argu-
ments to support the respective positions But, in my opinion, the contract
proposed by the Company was not a union-busting contract and it will not
support an inference of basic antiunion motivation in that the Company was
endeavoring to compel acceptance of a contract that inevitably would under-
mine the Union's status as bargaining agent and destroy its viability as a
union in the plant
people.
The Company believed that the timing afforded by the
lock-out would exert greater pressure wage-wise on the em-
ployees than would, for instance, a strike called after the
holidays. The lockout encompassed the holiday period
when, in the Company's view, the loss of wages would have
greater impact , particularly since the employees wuld, dur-
ing this period, have received four paid holidays, absent a
lockout. F3 Also, the Sharonville plant in December had an
oversupply of Dog Chow on hand due to prior high produc-
tion and lower sales than contemplated. Dollar-wise in per-
centage of business , dry pet foods are the Company's, or at
least the Grocery Products Division' s, largest item . The Dog
Chow is subject to spoilage and deterioration if not moved
into the market within certain periods of time. The Compa-
ny believed that during the lockout it could use up the Dog
Chow on hand and could thereby keep its customers sup-
plied although it would not be producing the product at
Sharonville during the lockout. Although it is apparent that
the Company could use up this supply of Dog Chow that
was on hand during a lockout, it could only do this as
effectively and as economically during a strike if the latter
had occurred early in December. The dog food surplus,
because of the spoilage factor, would not have been on
hand, if the strike took place at a later date and there was
no way to determine when a strike would occur. Also, Janu-
ary-February were the best months for Dog Chow sales and
spring and summer were best for the cereals. For the Com-
pany, a resolution of the contract issue before January was
desireable. Hopefully, from the Company's standpoint, the
lockout would pressure the employees and the Union to
reach contract agreement with the Company within a short
time after the lockout went into effect.
The business and economic considerations regarding the
decision to carry on limited production during the lockout
by using supervisors and office people to produce Sugar
Chex and Freakies are not reasons, in my opinion, why the
Company decided upon a lockout. This for the reason that
the same limited production could have been carried on
during a strike. The Company's explanation, previously de-
scribed, regarding the economic status of Sugar Chex and
Freakies is an explanation of why the Company had decid-
ed to carry on limited production with its own supervisors
and office people during the lockout. If, arguendo, the bur-
den of proof is on the Respondent to prove that it had a
substantial business reason for carrying on production with
temporary replacements during a lockout, then Respon-
dent, in my opinion, has met that burden even though Re-
spondent did not use temporary outside replacements. If, as
is customary in an 8 (a)(3) case, the General Counsel has the
burden of proving that the lockout and the carrying on of
production during the lockout were motivated by antiunion
considerations, then this burden, in my opinion, has not
been sustained.
As to subsequent events following the inception of the
lockout, I find nothing in them at variance with the conclu-
33 It is not unreasonable to assume that, if the employees and the Union
were going to strike, the very factors considered by the Company in engaging
in a lockout when it did would have been factors that would have led the
employees and the Union to choose sometime after the holiday period for
any strike
RALSTON PURINA COMPANY 377
sions reached as to the motivation of the lockout or as to
the intended effect thereof. Thus, it is fairly apparent that
the intended economic pressure of the lockout was having
little effect in attaining the Company's goal of achieving
union agreement on a contract along the basic lines of the
Company's previously offered proposal. The Union had
made no attempt during the lockout to initiate the resump-
tion of negotiations or to offer a new contract proposal or
to accept the proposal last offered by the Company. Fur-
ther, apparently the Company had not contemplated that
the employees would qualify or ultimately qualify for unem-
ployment payments from the State during the lockout.
When it became reasonably clear that unemployment pay-
ments would be or were being paid, the economic pressure
of the lockout was obviously diminished. The Company
announced to the Union, at the end of December 1971, that
it was terminating the lockout and it reinstated its contract
proposals with some improvements, including an 8.5-per-
cent contingent wage increase instead of the previous 8
percent. The Union rejected the offer, voted to strike, and
struck until the latter part of February 1972.
There is no dearth of decisions on the matter of lockouts,
with and without attempts of the employer to operate dur-
ing the lockout.34 I find it unnecessary to quote from or
analyze further what has been said and held in these deci-
sions.
In the Inland Trucking case, above, the company hired
and used employees from the outside as temporary replace-
ments. If enough such replacements are hired and they pos-
sess or attain a reasonable level of competence, the employ-
er is in a strong position and may incur no, or little,
economic pressure on its operations. Correspondingly, the
pressure and effect on the locked-out employees is materi-
ally increased. It is unnecessary to speculate whether, in
such a situation, the locked-out employees may have the
added pressure of fearing, whether rightly or not, that, with
the lapse of time, the temporary replacements might become
permanent and that the answer of how long is temporary
could be illusive.35 The instant case, involves the use of 46
company supervisors and office people who neither at-
tempted to nor could they perform the work of 250 regular
production and maintenance employees. The limited pro-
duction of which such replacements were capable, and to
which they were confined, obviously subjected the Compa-
ny to the same basic economic pressures as they would
undergo in a strike. The employees also incurred only the
same pressure normally present in a strike, i.e., loss of wag-
es, and, unlike a strike, they were, in effect, insured against
being permanently replaced or even temporarily replaced
by outside employees.
It is found that the complaint of an 8(a)(1) and (3) viola-
tion of the Act had not been sustained. I find neither actual
illegal discriminatory motivation or intent nor any inherent
or per se illegal discrimination or interference by reason of
the Company's conduct.36
ORDER
34 American Ship Building Co. v N L R.B, 380 U S 300 (1965), N L R B
v Brown et al, 380 U.S. 278 (1965), Ottawa Silica Company, 197 NLRB 449,
Inland Trucking Co and Wesley Meilahn Co-partners d/b/a Oshkosh Ready-
Mix Co v. N.L.R.B., 440 F.2d 562 (C.A. 7, 1971), cert denied 404 U.S 858
(1971); Inter Collegiate Press, 199 NLRB No 35, and such cases as N L R B
v. Erie Resistor Corp, 373 U.S. 221 (1963); Radio Officers' Union v N L R B,
347 U S 17 (1954); N.L. R. B. v Great Dane Trailers, Inc, 388 U.S 26 (1967),
N.L.R B, v Insurance Agents' International Union, AFL-CIO, 361 U S. 477
(1960); N L R B v. Mackay Radio & Telegraph Co, 304 U.S. 333 (1938)
It is hereby ordered that the complaint be dismissed.
35 Cf Ottawa Silica Company, above, where it was held that the employer
did not violate Sec 8(a)(1) and (3) by a lockout and continuing its operations
with temporary replacements consisting of supervisors and sales personnel.
36 The complaint allegation that the Union strike was an unfair labor
practice strike is conceded by the General Counsel to be essentially moot
since all the strikers were reinstated after the strike In any event, I do not
consider the strike to have been an unfair labor practice strike