The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0143p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DAYTON NEWSPAPERS, INC., d/b/a COX PUBLISHING X
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Petitioner/Cross-Respondent, -
OF OHIO,
-
-
Nos. 03-1981/2110
,
v. >
-
-
Respondent/Cross-Petitioner, -
NATIONAL LABOR RELATIONS BOARD,
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-
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GENERAL TRUCK DRIVERS, CHAUFFEURS,
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WAREHOUSEMEN AND HELPERS LOCAL UNION NO.
957, -
Intervenor. -
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N
On Petition for Review and Application for Enforcement
of an Order of the National Labor Relations Board.
Nos. 9-CA-36894; 9-CA-36981; 9-CA-37385.
Argued: September 14, 2004
Decided and Filed: March 23, 2005
Before: BOGGS, Chief Judge; GUY, Circuit Judge; and STEEH, District Judge.*
_________________
COUNSEL
ARGUED: Brett L. Thurman, Dayton, Ohio, for Petitioner. Steven B. Goldstein, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for Respondent. John R. Doll, LOGOTHETIS,
PENCE & DOLL, Dayton, Ohio, for Intervenor. ON BRIEF: James M. Hill, McNAMEE & HILL,
Beavercreek, Ohio, Leslie H. Wiesenfelder, DOW, LOHNES & ALBERTSON, Washington, D.C.,
for Petitioner. Steven B. Goldstein, Margaret A. Gaines, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for Respondent. John R. Doll, LOGOTHETIS, PENCE & DOLL,
Dayton, Ohio, for Intervenor.
*
The Honorable George Caram Steeh, United States District Judge for the Eastern District of Michigan, sitting
by designation.
1
Nos. 03-1981/2110 Dayton Newspapers v. NLRB Page 2
_________________
OPINION
_________________
BOGGS, Chief Judge. This is a case of one-upmanship gone wrong. A union called a one-
day strike in order to push management into more active bargaining, and the management reacted
by locking out the union and laying off some of its members. The lockout dragged on for months,
resulting in a finding by the NLRB that the company had committed multiple unfair labor practices
including threatening the strikers with loss of their jobs, dealing directly with the strikers, failing to
reinstate the strikers after an unconditional offer to return, failing to pay a bonus, and laying-off and
failing to recall the laid-off workers. Appellant seeks review of the NLRB order; the NLRB seeks
enforcement. We affirm the NLRB with regard to the unfair labor practices stemming from the
strike and lockout and the failure to pay the bonus but reverse the NLRB’s holdings regarding the
laid-off workers.
I
Appellant, Dayton News, Incorporated (DNI), is the publisher of the Dayton (Ohio) Daily
News. The Charging Party, Local 957 of the Teamsters-affiliated General Truck Drivers,
Chauffeurs, Warehousemen and Helpers Union (the Union), is a bargaining unit made up of drivers
and maintenance workers. The drivers’ job is to pick up the newly-printed newspapers at the Daily
News facility and deliver them to various distribution points in the area. A daily newspaper is a
highly perishable commodity. If it is not delivered on time, it becomes worthless.
On the night of Saturday, June 26, 1999, the Union called a one-day “quickie” strike. DNI
managed to get the Sunday paper out that night, but it refused the Union’s subsequent offer to return
to work Sunday night and locked the drivers out. The lockout continued into 2000, despite an
additional Union offer to return to work in late December 1999. The unfair labor practices charged
by the Union all stem from the strike and lockout.
Prior to and after the strike, the relationship between the newspaper and the Union was
affected by two important developments. First, DNI was building a new printing facility outside
Dayton to replace its downtown building. In the Spring of 1998, DNI notified the Union that the
new facility would necessitate some changes in operations and in the number of drivers needed. In
the old facility, the dock area only had space to load 12-foot trucks. The new facility would be able
to handle 45-foot trucks, so delivery runs could be consolidated. As a consequence, DNI planned
to lay off the thirteen least-senior drivers, retaining eighteen drivers. DNI notified the Union of
these layoffs on January 18, 1999.
Also in early 1999, DNI offered all of its employees who would lose their jobs as a result of
the move to the new facility, including the thirteen least-senior drivers, a Stay-to-the-End Bonus of
up to $10,000. The Bonus was contingent on the employees “staying actively at work, and in good
standing, until their release date.” The company tentatively planned to begin laying off workers in
July 1999 and intended to release employees gradually.
The second important development that affected labor-management relations was unfruitful
negotiations over a new contract. The Union’s collective bargaining agreement with DNI expired
on November 15, 1998. The two sides had been in talks since August 1998 and appeared to have
reached an agreement by the end of November. The Union scheduled a ratification vote for
November 30, 1998, but at the last minute, and despite promises made to DNI by lead negotiator
John Burns, Vice President of the Union’s Executive Committee and Local 957's business
representative, the Union’s Executive Committee cancelled the vote. The record does not indicate
why the vote was cancelled, although apparently Burns told the drivers that DNI had “changed the
Nos. 03-1981/2110 Dayton Newspapers v. NLRB Page 3
deal,” a claim the ALJ later found to be untrue. After this, the two sides continued to negotiate but
only in a desultory manner–meetings were scheduled once a month but many were cancelled.
In May 1999, the Union voted to authorize a strike but did not notify DNI of this. DNI
Operations Manager, Michael Joseph, only found out about the possibility of a strike in mid-June
when a driver “blurted” it out during a meeting about the transition to the new facility. There is
some dispute about how Joseph reacted. One driver, Tim Hehemann, testified that Joseph threatened
the drivers with the loss of their jobs if they went on strike,1 but another driver testified differently:
Q. And you said that Mike responded that that [striking] would be a mistake?
A. Yes, sir.
Q. Okay. And isn’t it true that at no time did Mr. Joseph say that striking employees would
be fired?
A. Yes.
Q. That’s correct?
A. He did not say that. I did not hear nothing about any threats, or anything.
The ALJ, however, chose to credit Hehemann’s statement.
At 10:00 p.m. on Saturday, June 26, 1999, without notifying DNI, the Union went on strike,
setting up picket lines at the DNI headquarters downtown, at the new printing facility, and at the
Penske lot where the delivery trucks were parked when not in use. Most of the drivers scheduled
to work that night were the least senior ones; the three senior drivers who were scheduled all crossed
the picket line. John Burns, the Union business representative, testified that he timed the strike with
an eye toward maximum impact, because the Sunday paper is DNI’s most profitable of the week.
The Union’s stated intent was to prevent the newspapers from going out, and to this end picketers
blocked the exits at the Penske lot and the entry to the downtown building with their bodies. DNI
had to call the police to clear the picketers away, and after each truck left, the picketers returned, and
the police had to clear them out again. The paper got out, but the deliveries were delayed.
According to the testimony of several drivers and other Union representatives present at the picket
lines, a furious Michael Joseph told the drivers that the Union had “cost all you guys your jobs.”
On Sunday, June 27, the Union sent notice to DNI indicating the drivers’ unconditional
intention to return to work that evening. As each driver showed up for his shift, however, Joseph
sent him home, saying that DNI was “not in need of 957’s services,” and that the drivers would be
contacted about when they should return to work. When drivers asked if their work was
unsatisfactory, Joseph told them he was happy with them, it was the Union and its representatives
with which he had the problem.
During the week following the strike, Joseph contacted the eighteen drivers who would be
employed at the new printing facility and asked to speak to each of them individually. About a
dozen drivers accepted his offer. In the meetings, he explained that he would welcome back any
driver who promised to show up for work, i.e., not to strike. He also discussed the contract
negotiations and the fact that working drivers might have to cross the picket line. Nine drivers
eventually went back to work. DNI did not notify the Union that it was holding these meetings, did
not permit a Union representative to be present, and did not first discuss with the Union the issues
to be raised in the meetings.
1
“He said, well, you don’t want to do that and, you know, basically, we were saying, well, it’s going to happen.
He said you definitely don’t want to strike, and I asked him, I said, well, what would happen? And he said, well, you
won’t be working here any more, and that would be it for you.”
Nos. 03-1981/2110 Dayton Newspapers v. NLRB Page 4
On July 1, 1999, DNI declined the Union’s June 27 offer to return to work and formally
notified the Union and the drivers that it was putting the eighteen senior drivers on unpaid leave and
laying off the thirteen least-senior drivers. The senior drivers who accepted DNI’s conditions were
permitted to return to work. DNI also eventually refused to pay the Stay-to-the-End bonus to the
laid-off drivers.
Simultaneously, DNI expedited the transfer to the new printing facility. The strike forced
it immediately to find a way to reduce its routes down to the eighteen it had planned to implement
after the transition. Among other efficiency measures, DNI began to use the 45-foot trucks for some
of its deliveries. These trucks required drivers to have a Class A Commercial Driver’s License,
which had not been necessary to drive the older 12-foot trucks. To cope with the lockout, DNI also
hired replacement drivers. Although it did not recall any of the least-senior, laid-off drivers, it did
rehire at least one of them as a new employee.
On July 19 and again on August 9, 1999, DNI met with the Union to try to negotiate an end
to the lockout and a new contract. DNI demanded that the Union give “work assurances” until the
transition to the new facility was complete. Not even DNI officials seemed completely sure what
they were asking for. DNI told the Union, “[f]or now, as an opening proposition, we are asking for
some assurances that work and new plant transition can continue with little or no interruption until
the transition is complete–after that, some type of advance notice (a few weeks might be enough,
maybe less) before striking would be required.” In addition, DNI asked the Union to accept the
operational changes that had been made as a result of the expedited transfer. The company stated
bluntly that it would not return to the less efficient delivery procedures of the past and that it did not
want the drivers to return and to start filing complaints with the NLRB because of the new
operations.
When the Union negotiators asked DNI to describe the operational changes, the company
was reluctant to do so, but eventually offered what it called a partial list of nine changes that had
already taken place or were immediately anticipated. DNI did not explain what other changes it was
expecting, telling the Union the drivers would have to accept the operation “as is” on the day they
returned to work. However, the expedited move had thrown DNI off its original transfer plan,
lending some credibility to the company’s claims that it could not detail the future operational plans
to the Union with any precision.
Over the course of the summer, the Union filed a series of unfair labor practice charges with
the NLRB. In late December 1999, the Acting Regional Director of the NLRB notified the parties
that he was refusing to issue a complaint on the charges that DNI unlawfully locked the Union out,
that it unlawfully changed working conditions of the thirteen most-senior drivers with jobs
guaranteed for life, or that it made unlawful unilateral changes in operating procedures during the
transition period. On April 14, 2000, the NLRB General Counsel upheld these findings on appeal.
On December 23, the Union made what it called an unconditional offer to DNI to return to
work:
on the same terms and conditions and with the same guarantees and promises as
those drivers the Company had permitted to return to work since July 1, 1999. To
ensure that there is no misunderstanding about this unconditional offer, Local 957
and the individual drivers locked out by DNI . . . [who] have not returned to work
agree to return to work with the same assurances that there would be no work
stoppages, strikes or other slowdowns for the same period of time agreed to by the
locked out drivers that the Company has allowed to return to work, and providing the
same notification agreed to by those same locked out drivers that the Company
allowed to return to work.
Nos. 03-1981/2110 Dayton Newspapers v. NLRB Page 5
This unconditional offer to return to work as set forth above is continuing in nature
and the locked out drivers who have not yet been allowed to return to work are
willing and able to return to work at any time in the future beginning from the date
of this letter forward[].
DNI chose to treat this offer not as an unconditional expression of the Union members’ willingness
to return to work but rather as an offer to negotiate.
On December 27, 1999, DNI sent a letter to the Union listing a number of reasons why the
company could not bring the old drivers back immediately and a series of changes that had occurred
in the operations of the newspaper that made negotiations with the Union more complicated. These
included: the near-completion of the transition to the new facility, unnamed union unfair labor
practices, unnamed union criminal acts, the union’s position in a state court filing that it had no
control over the actions of the locked-out employees, the hiring and training of replacement workers,
changes in the bargaining strength of the unit, and continued operational changes at the new facility.
DNI also claimed that the Union made insufficient work assurances and asked whether the Union
could provide some kind of collateral in case the returning workers did not do what the Union
promised.
The Union responded immediately, pointing out that most of DNI’s claims were either
irrelevant or spurious, and asking again that the company contact the locked-out drivers about
returning to work. DNI did not make itself available to negotiate until February 4, 2000, and at that
meeting continued to contend that it could not trust the Union or the drivers. DNI also focused the
discussion on the issues of back pay and contract negotiations.
On November 14, 2000, an ALJ issued a decision finding DNI in violation of several
provisions of the NLRA: i) threatening the drivers with loss of their jobs if they went on strike, in
violation of § 8(a)(1); ii) dealing directly with the drivers, in violation of § 8(a)(5) and (1); iii)
unlawfully continuing the lockout after December 27, 1999, in violation of § 8(a)(3) and (1); iv)
unlawfully laying off drivers and failing to recall them, in violation of § 8(a)(3) and (1); and v)
failing to pay the Stay-to-the-End Bonus, in violation of § 8(a)(3) and (1). On July 14, 2003, a panel
of the NLRB upheld the ALJ’s findings of fact and law, though in several instances on different
legal theories. The NLRB issued a cease-and-desist order for each unfair labor practice it found,
ordered DNI to reinstate all of the locked-out and laid-off workers with back pay, pay the Stay-to-
the-End Bonus with accrued interest, make the usual cleansing of the personnel records, and post
the usual notices. DNI petitions for review of the Board’s decision, and the Board files a cross-
application for enforcement of its order.
II
This court reviews the NLRB’s legal conclusions de novo. Mt. Clemens Gen. Hosp. v. NLRB,
328 F.3d 837, 844 (6th Cir. 2003). The Board’s findings of fact, however, are upheld “if supported
by substantial evidence on the record.” Kamtech, Inc. v. NLRB, 314 F.3d 800, 807 (6th Cir. 2002)
(citing NLRA § 10(e) and (f), 29 U.S.C. § 160(e) and (f)). Substantial evidence consists of “‘such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Fluor
Daniel, Inc. v. NLRB, 332 F.3d 961, 967 (6th Cir. 2003) (quoting DuPont Dow Elastomers, L.L.C.
v. NLRB, 296 F.3d 495, 500 (6th Cir. 2002)) (internal citations omitted). Facts are weighed in view
of the record as a whole. NLRA § 10(e), 29 U.S.C. § 160(e); Universal Camera Corp. v. NLRB, 340
U.S. 474, 488 (1951). Under this standard, the reviewing court must defer both to reasonable
inferences drawn by the Board from the facts before it and to the Board’s assessment of the
credibility of witnesses. Fluor Daniel, 332 F.3d at 967; Kamtech, 314 F.3d at 807; Tony Scott
Trucking, Inc. v. NLRB, 821 F.2d 312, 315 (6th Cir. 1987) (“Deference to the Board's factual
findings is particularly appropriate where the ‘record is fraught with conflicting testimony and
Nos. 03-1981/2110 Dayton Newspapers v. NLRB Page 6
essential credibility determinations have been made.’”) (quoting NLRB v. Nueva Eng'g, Inc., 761
F.2d 961, 965 (4th Cir. 1985)). Therefore, this court cannot set aside, in favor of its own
interpretation, NLRB findings that are supported by substantial evidence. Torbitt & Castleman, Inc.
v. NLRB, 123 F.3d 899, 905 (6th Cir. 1997). However, the NLRB’s findings can be set aside if “the
record demonstrates that the Board's decision is not ‘justified by a fair estimate of the worth of the
testimony of witnesses’ or by the Board's ‘informed judgment on matters within its special
competence or both.’” V & S ProGalv, Inc. v. NLRB, 168 F.3d 270, 275 (6th Cir. 1999) (quoting
Turnbull Cone Baking Co. of Tenn. v. NLRB, 778 F.2d 292, 295 (6th Cir. 1985)).
III
We first consider the Board’s findings regarding the three alleged unfair labor practices
stemming from the strike and lockout: (1) that DNI used the threat of job loss to coerce the drivers
prior to, during, and after the strike; (2) that DNI dealt directly with the union members when it held
one-on-one meetings after the June 26 strike; and (3) that the lockout became unlawful after the
Union’s offer in December 1999 to return to work. We affirm the Board and grant enforcement of
its order on each of these findings.
1) Coercion
Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer “to interfere
with, restrain, or coerce employees in the exercise of the rights” to organize, join or assist unions,
bargain collectively, and engage in collective action. 29 U.S.C. § 158(a)(1); see also NLRA § 7, 29
U.S.C. § 157. A section 8(a)(1) violation occurs when substantial evidence demonstrates that the
employer’s statements, considered from the employees’ point of view, had a reasonable tendency
to coerce. Beverly Health & Rehab. Servs. v. NLRB, 297 F.3d 468, 476 (6th Cir. 2002); Peabody
Coal v. NLRB, 725 F.2d 357, 363 (6th Cir. 1984). The union does not have to demonstrate actual
coercion. Torbitt & Castleman, 123 F.3d at 907.
Statements, even those that imply negative views of unionism, are not coercive if they
express a reasonable belief based on objective facts beyond the employer’s control or that describe
management decisions made prior to the union action. NLRB v. Gissel Packing Co., 395 U.S. 575,
618-19 (1969). By contrast, statements that imply that the “employer may or may not take action
solely on his own initiative for reasons unrelated to economic necessities and known only to him”
constitute impermissible coercion if, taken from the employees’ point of view, they suggest that
economic reprisals will follow union activity. Ibid. Thus, for example, threatening employees with
loss of employment or other adverse consequences should they strike, or trying to induce employees
to rid themselves of the union by promising they would be better off without it are well-established
violations of § 8(a)(1). NLRB v. Flex Plastics, Inc., 726 F.2d 272, 276 (6th Cir. 1984) (employer
unlawfully undermined union by telling employers they could get better deal without it); Sedloff
Publ’ns, Inc., 265 NLRB 962, 969 (1982) (employer unlawfully suggested to picketers that problem
could be resolved if they dropped union and returned to work).
In assessing the coercive impact of the employer’s statements, we defer to the NLRB’s
judgment and expertise. Gissel, 395 U.S. at 620; Beverly Health, 297 F.3d at 476. The Board’s
findings of fact are conclusive if they are supported by substantial evidence on the record as a whole.
NLRA § 10(e), 29 U.S.C. § 160(e).
In the present case, the Board found that DNI tried impermissibly to coerce employees in two
instances. First, prior to and during the June 26 strike, Operations Manager Joseph threatened the
drivers with the loss of their jobs if they struck. For example, when he learned of the strike vote,
he warned the drivers that if they struck, they “won’t be working here anymore,” and during the
strike he told the Union Vice President, “you just cost all these guys their jobs.” Second, after the
strike, Joseph told the drivers that the Union was not representing their best interests. When the
Nos. 03-1981/2110 Dayton Newspapers v. NLRB Page 7
drivers tried to return to work, he turned them away, explaining he had no problem with them but
rather with the Union and that as long as the Union represented them, he did not believe the conflict
could be resolved.
The Board found, and we agree, that the drivers understood such statements to be coercive
and to imply that their exercise of their § 7 rights would lead to economic reprisals. It also found
that the management was not expressing reasonable objective beliefs based on objective facts or
decisions made prior to learning of the Union’s intent to strike.
Appellant argues that the ALJ mistakenly credited driver Hehemann’s testimony that during
a meeting in mid-June Joseph threatened the drivers with job loss if they struck. No other driver
testified to hearing the threat, and one driver testified specifically that he did not hear it. In addition,
Appellant points out, the ALJ discredited Hehemann’s testimony that the picketers did not block
trucks from entering and leaving during the strike. The implication Appellant wishes us to draw is
that if Hehemann was unreliable in one part of his testimony, he was unreliable in all of it. The ALJ,
however, chose to credit Hehemann’s testimony about Joseph. It is well settled that reviewing
courts will only overturn credibility assessments of the ALJ, who saw the witness testify, only if the
assessments have no rational basis. See, e.g., Fluor Daniel, 332 F.3d at 967; FiveCAP, Inc. v. NLRB,
294 F.3d 768, 776 (6th Cir. 2002); NLRB v. Gen. Fabrications Corp., 222 F.3d 218, 225 (6th Cir.
2000). The ALJ made his assessment of Joseph’s comments about the strike and the Union in light
of Joseph’s statements during and after the strike, in light of Joseph’s failure to testify about what
he said at the meeting, and in light of the ALJ’s discrediting of Joseph’s testimony that he did not
discuss strikes or crossing the picket line in his one-on-one meetings with the drivers. We cannot
displace the Board’s choice to accept the ALJ’s credibility assessment unless we find it unsupported
by substantial evidence. Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 488 (1951). We do
not so find, and therefore we affirm the Board’s holding.
2) Direct Dealing
NLRA § 8(a)(5) makes it an unfair labor practice for an employer to refuse to bargain
collectively with the employees’ representatives. 29 U.S.C. § 158(a)(5). That section incorporates
by reference § 9(a), which makes the bargaining unit representatives the exclusive representative
of the employees “for the purpose of collective bargaining in respect to rates of pay, wages, hours
of employment, or other conditions of employment.” 29 U.S.C. § 159(a). Thus, employers may not
go directly to employees, who have not repudiated their union, and bargain with them on matters
covered by the collective bargaining agreement. NLRB v. Goodyear Aerospace Corp., 497 F.2d 747,
752 (6th Cir. 1974); see also NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180 (1967) (“only the
union may contract the employee’s terms and conditions of employment . . . .”).
An employer may communicate directly with its employees only “if such expression contains
no threat of reprisal or force or promise of benefit,” NLRA § 8(c), 29 U.S.C. § 158(c); Gissel
Packing, 395 U.S. at 618, and only when doing so is not “likely to erode ‘the Union’s position as
exclusive representative.’” Allied-Signal, Inc., 307 N.L.R.B. 752, 753 (1992) (quoting Modern
Merch., 284 N.L.R.B. 1377, 1379 (1987)). Furthermore, when the statements themselves constitute
unfair labor practices, for instance because they disparage the union, hold the employer out as the
employees’ protector, or undermine the union by changing employment conditions treated in the
collective bargaining agreement, direct dealing is presumed. NLRB v. Pratt & Whitney Air Craft
Div., United Techs. Corp., 789 F.2d 121, 134-35 (2d Cir. 1986); see also Henry Bierce Co. v. NLRB,
23 F.3d 1101, 1109 (6th Cir. 1994) (polling employees without informing union about poll is direct
dealing); NLRB v. M.A. Harrison Mfg. Co., 682 F.2d 580, 582 (6th Cir. 1982) (bypassing Union by
directly soliciting employee views on an insurance plan is direct dealing); NLRB v. Roll & Hold
Warehouse & Distribution Corp., 162 F.3d 513, 519 (7th Cir. 1998) (finding company undermined
union by presenting plan to employees before notifying union); Safeway Trails, Inc. v. NLRB, 641
Nos. 03-1981/2110 Dayton Newspapers v. NLRB Page 8
F.2d 930, 932-33 (D.C. Cir. 1979) (finding § 8(a)(5) violation when employer told employees that
union was to blame for state of negotiations).
We agree with the Board that DNI dealt directly with the union drivers. DNI requested
individual meetings with the drivers without informing the Union of the meetings, without
discussing the relevant issues with the Union first, and without permitting the Union to have a
representative present at the meetings. During the meetings, Joseph discussed what DNI considered
an acceptable work commitment from the drivers, including a commitment not to strike during the
transition. In the meetings, Joseph also suggested that it was the Union negotiators who had caused
the problems and that the drivers would be better off dealing with DNI directly. Through these
meetings, DNI succeeded in prying employees loose from the Union, as nine of the eighteen senior
drivers eventually agreed to return to work on the conditions Joseph specified. At least one driver
resigned from the Union prior to returning to work.
DNI contends that it did no more than what the NLRB found acceptable in U.S. Ecology
Corp., 331 N.L.R.B. 223 (2000), enf’d, 26 Fed. Appx. 435 (6th Cir. 2001) (unpublished). In that
case, the company sent letters to striking workers in response to questions from the workers about
how they could return to work. The letters stated that “for the time being” they could return at the
pre-strike wage and benefits levels. The company did not send the letter to the Union. The Board
found that when the company responded to workers’ requests for information by stating the only
employment conditions the company lawfully could offer, the company did not tend to erode the
Union’s position as exclusive bargaining representative. Id. at 226. U.S. Ecology is distinguishable
from the present case because DNI initiated contact with the workers, and it proposed to them
working conditions, in particular a waiver of the right to strike, different from those in effect before
the strike. These factors convince us that DNI’s actions would have tended to erode the Union’s
position, and we therefore affirm the NLRB and grant enforcement.
3) Unlawful Lockout
In December 1999, the General Counsel found that DNI had lawfully locked out the Union
on July 1 because the potential for future “quickie” strikes would substantially harm its ability to
get its newspapers delivered and because the Union would not agree to refrain from such strikes
during the transition period. On December 23, 1999, the Union “unconditionally” offered to return
to work on the same terms as those workers who had returned in July. However, on December 27,
DNI refused to accept this offer and continued the lockout. As a consequence of this refusal, the
NLRB found that as of December 27, 1999, DNI was engaged in an illegal lockout.
An employer violates NLRA § 8(a)(3) and (1) if it fails to reinstate striking workers without
showing a legitimate and substantial business justification. NLRB v. Fleetwood Trailers, 389 U.S.
375, 378 (1967); NLRB v. Great Dane Trailers, 388 U.S. 26, 34 (1967). An employer may lawfully
lock out employees to prevent losses in the face of repeated “quickie” strikes or to pressure the
Union to accept the employer’s legitimate bargaining position, International Shoe Co., 93 N.L.R.B.
907 (1951); American Ship Building Co. v. NLRB, 380 U.S. 300 (1965), as long as the employer
conducts the lockout in a manner “reasonably adapted to achieve legitimate business ends or to deal
with business exigencies . . . .” NLRB v. Brown Food Store, 380 U.S. 278, 287-88 (1965). To be
reasonably adapted to achieve legitimate business ends, the “employer’s conduct throughout the
lockout must be consistent with the advancement of its legitimate bargaining position so that the
employees are able to ‘knowingly reevaluate their position.’” Anchor Concepts, Inc., 323 N.L.R.B.
742, 745 (1997) (quoting Eads Transfer, Inc., 304 N.L.R.B. 711, 712 (1991)). The employees must
know at any point in the lockout what they can do to end it.
The Board found that, while DNI was entitled to sufficient assurances from the Union to
protect its business interests, its response to the Union’s December 23 offer failed to provide the
Nos. 03-1981/2110 Dayton Newspapers v. NLRB Page 9
Union with information about how it could end the lockout. DNI had never answered the Union’s
September 13 request for a description of all the operational changes it implemented as part of the
move to the new facility. Thus the Union’s December 23 letter could not have been more specific
about the changes it was willing to accept. In its December 27 response, DNI failed to remedy the
information gap, alluding instead to the time pressures caused by the imminent possibility of Y2K
disaster, the locked-out drivers’ lack of training in the new operations, unnamed operational
changes, and the replacement workers’ training. Admittedly, DNI also mentioned, without
explaining, more relevant bargaining matters such as the Union’s failure to offer “collateral” for its
promise not to strike, and the Union’s failure to agree to the specific work assurances DNI wanted.
Nonetheless, the Board found that DNI failed to meet its burden of proving a legitimate business
justification for its refusal to reinstate the striking workers and that DNI failed to ensure that the
Union could knowingly evaluate its position.
We believe that the Board, which has the primary responsibility for balancing management’s
business needs with the workers’ right to be reinstated, Fleetwood Trailer, 389 U.S. at 378, did not
err in finding that after December 27, DNI’s demands became a “moving target” that made it ever
more difficult for the Union to knowingly evaluate its position and end the lockout.
IV
We next turn to the three unfair labor practices that the Board found to stem from the layoff
of the thirteen least-senior drivers. We believe that the Board erred in holding that DNI violated
§ 8(a)(3) and (1) of the NLRA by laying off and then failing to recall these drivers. However, we
grant enforcement of the Board’s finding that DNI must pay them their Stay-to-the-End bonus.
1) Layoffs
The Board found that DNI violated NLRA § 8(a)(3) and (1) by failing to reinstate, laying
off, and failing to recall the thirteen least-senior drivers. We are not persuaded that the Board’s
holding is supported by substantial evidence. Universal Camera, 340 U.S. at 488 (“[A] reviewing
court is not barred from setting aside a Board decision when it cannot conscientiously find that the
evidence supporting that decision is substantial, when viewed in the light that the record in its
entirety furnishes, including the body of evidence opposed to the Board's view.”); Integrated Health
Servs. v. NLRB, 191 F.3d 703, 706 (6th Cir. 1999); Fleming Cos. v. NLRB, 349 F.3d 968, 972 (7th
Cir. 2003).
The Board’s opinion concerning the treatment of the thirteen least-senior drivers found two
of DNI’s actions to be unlawful. First, it held that DNI showed no legitimate and substantial
business justification for failing to reinstate these thirteen drivers on July 1. Second, it found that
DNI laid off the drivers in retaliation for the strike. We will analyze each point in turn.
The Union went on strike on June 26. The next day, it notified DNI that the strike was over,
and the drivers showed up for work that evening. At that point, the strike ended. See Independent
Fed’n of Flight Attendants v. Trans World Airlines, Inc., 819 F.2d 839, 847 (8th Cir. 1987) (finding
“strike ended when the Union unconditionally offered to return to work.”); Eazor Express, Inc. v.
Int’l Bhd. of Teamsters, 520 F.2d 951, 966 (3d Cir. 1975) (finding strike ended when the striking
employees returned to work). As the drivers arrived for their shift, DNI sent them away. With this
act, DNI locked out all the drivers. The lockout did not simply begin with the July 1 formal refusal
of the Union’s offer to return to work or the lockout letter sent to the eighteen senior drivers. If the
strike was over, and the drivers were not working because DNI would not permit them to work, then
we can conceive of no other legal status for the drivers than “locked out.”
Although the NLRA does not define the term “lockout,” it is generally taken to refer to “the
withholding of employment by an employer from its employees for the purpose of either resisting
Nos. 03-1981/2110 Dayton Newspapers v. NLRB Page 10
their demands or gaining a concession from them.” 2 Patrick Hardin and John E. Higgins, Jr., The
Developing Labor Law 1523 (4th ed. 2001); 48A AM JUR 2D Labor and Labor Relations § 3571 (“A
lockout occurs when an employer discontinues all or a portion of its operations or refuses to allow
employees to work for the purpose of bringing pressure upon the union.”) Preventing employees
from working in response to intermittent or quickie strikes has long been acknowledged as
constituting a lockout. International Shoe, 93 N.L.R.B. 907.
Furthermore, the Union’s original charge against DNI contended that “[o]n or about June 27,
1999 [DNI] has discriminated in regard to the tenure of employment of all of the drivers employed
by the Employer . . . by locking them out . . . .” When the Acting Regional Director and the General
Counsel ruled on this complaint, they found that “the employer had a legitimate business
justification for engaging in the lockout . . . .” Nothing in the Union’s complaint, the Acting
Regional Director’s initial findings, or the General Counsel’s review of those findings indicate that
anyone believed that the lockout began on July 1 or that it included only the eighteen drivers
formally notified of the lockout on that date. Consequently, we find that the thirteen least-senior
drivers were locked out from June 27-July 1, 1999.
As of July 1, DNI changed the status of the thirteen least-senior drivers from locked out to
laid off. The Board held that at this time DNI should have reinstated the laid-off drivers because
DNI needed more drivers than it had, so it had work for the laid-off drivers to do. We find that this
statement inaccurately reflects the state of affairs at DNI on July 1. DNI testified that between June
27 and July 1, it expedited its transition process and consolidated its delivery runs down to the 18
it had planned to institute after the move to the new facility. As it was this consolidation that was
to have caused the thirteen drivers to lose their jobs, their release date had effectively arrived, and
DNI had the right, under the notice it gave long before the strike, to lay off the least-senior drivers.
DNI’s need to hire replacement workers to fill those 18 runs arose from the fact that it had locked
out some of the most-senior workers who were supposed to have staffed them. Moreover, the recall
of laid-off workers is governed by the collective bargaining agreement not the NLRA, and the
agreement between DNI and the Union was no longer in force.2
Assuming, arguendo, that the Board was correct in finding that DNI should have reinstated
the least-senior drivers because they were economic strikers who had made an unconditional offer
to return to work, we do not agree that DNI failed to meet its burden of showing a legitimate and
substantial business justification for not doing so. Fleetwood Trailer, 389 U.S. at 378; Laidlaw
Corp., 171 N.L.R.B. 1366, 1368 (1968). The strike caused DNI to expedite its transition and
eliminate the jobs of the laid-off drivers. The Board does not dispute that DNI had a legitimate and
substantial business justification for consolidating its runs. Even with only eighteen runs, DNI still
had vacancies due to the continued lockout of a number of the most senior drivers. However, a
striking worker does not have to be recalled to an opening for which he or she is qualified unless that
vacancy is created by the departure of replacements from the striker’s former job. Rose Printing Co.,
304 N.L.R.B. 1076, 1079 (1991). As part of the process of reducing its runs, DNI went to larger
trucks requiring a Class A Commercial Driver’s License, changed its routes, and made other
operating adjustments. Therefore, the jobs available on July 1 were not the jobs the laid-off drivers
had left, and DNI had no obligation to recall them to merely similar jobs.
The Board also found that the layoffs were unlawful under a Wright Line analysis. 251
N.L.R.B. 1083, 1089 (1980). The Wright Line test places the burden on the General Counsel to
make a prima facie showing, by a preponderance of the evidence, that the employer’s action was
motivated, at least in significant part, by anti-union animus. The employer then bears the burden
of making the affirmative defense, by the preponderance of the evidence, that the act was motivated
2
If it had been in force, the initial strike would have violated the CBA’s no-strike clause.
Nos. 03-1981/2110 Dayton Newspapers v. NLRB Page 11
by a substantial business justification, such that the employee would have been dismissed even if
the protected concerted activity had not taken place. Ibid.; NLRB v. Transp. Mgmt. Corp., 462 U.S.
393 (1983) (adopting the Wright Line test); Bowling Transp., Inc. v. NLRB, 352 F.3d 274, 283 (6th
Cir. 2003). To meet its initial burden, the General Counsel needs to demonstrate that the employee
was knowingly engaged in a protected activity, that the employer knew of the activity, and that the
employer’s action resulted from anti-union animus. Kamtech, 314 F.3d at 811 (citing FiveCAP, Inc.
v. NLRB, 294 F.3d 768, 777-78 (6th Cir. 2002)).
The ALJ and NLRB found that the General Counsel had established his prima facie case for
DNI’s unlawful motivation. We disagree. While it is true that DNI tried to coerce the drivers out
of striking and threatened them when they did, we look also to the Acting Regional Director and
General Counsel’s findings that the initial lockout was lawful, that is, it was not motivated by anti-
union animus but rather by DNI’s legitimate need to prevent quickie strikes. By July 1, DNI laid
off the least-senior drivers because it had eliminated their jobs. Certainly, it expedited the
elimination of these positions because of the strike, but it had long since planned to lay off these
drivers as the transition to the new facility progressed.
The doctrine of entrepreneurial discretion holds that an employer may make significant
changes in its operations “so long as its change in operations is not motivated by the illegal intention
to avoid its obligations under the National Labor Relations Act.” NLRB v. J.M. Lassing, 284 F.2d
781, 783 (6th Cir. 1960); see also Dorsey Trailers, Inc. v. NLRB, 233 F.3d 831 (4th Cir. 2000)
(finding no Wright Line violation where company’s decision to move facility was motivated by anti-
union animus but where company would have moved based on economic factors alone). This case
does not present a situation in which, after the strike, DNI suddenly decided to find a way to cut
back its runs for no reason other than to spite the Union. The reduction in runs had been in the
works not only well before the strike but well before DNI had any inkling that the Union might call
a strike. The move to the new facility was dictated by pure business judgment, not anti-union
animus or a desire to chill participation in the Union. DNI should not be punished for doing what
it had already planned to do, simply because it took that action more quickly in the aftermath of the
strike.
For these reasons, we reverse the NLRB’s finding that DNI committed unfair labor practices
in its treatment of the thirteen least-senior drivers, and we refuse enforcement of the order on this
issue.
2) Stay-to-the-End Bonus
An employer violates NLRA § 8(a)(3) and (1) when it withholds an accrued benefit that
employees would have received but for having exercised their § 7 right to strike. Great Dane, 388
U.S. at 32, 34-35. If the General Counsel has shown that the benefit was accrued and that it was
withheld because of a strike, the employer may rebut the finding of an unfair labor practice by
demonstrating that it had a legitimate and substantial business justification for withholding the
benefit. Texaco, Inc., 285 N.L.R.B. 241, 245-46 (1987). A benefit is accrued when it is “‘due and
payable on the date on which the employer denied [it].’” Conoco, Inc. v. NLRB, 740 F.2d 811, 814
(10th Cir. 1984) (quoting E.L. Wiegand Div., Emerson Elec. Co. v. NLRB, 650 F.2d 463, 469 (3d
Cir. 1981)).
Applying the Texaco test, the Board found that DNI owed the thirteen laid-off workers the
Stay-to-the-End bonus. In response, DNI makes two arguments. First, it contends that the bonus
was not an accrued benefit but rather a benefit dependent upon the performance of services, which
can be withheld. Second, it argues in the alternative that even if the bonus were an accrued benefit,
DNI acted on the good-faith belief that it was not, so the failure to pay does not rise to the level of
an unfair labor practice. We disagree with both of DNI’s theories.
Nos. 03-1981/2110 Dayton Newspapers v. NLRB Page 12
Under the terms of the Stay-to-the-End offer, DNI promised to pay a bonus of up to $10,000
to employees who remained “actively at work, in good standing, until their release date.” As the
intent of the bonus was to reward work already done, we are not persuaded by DNI’s assertion that
the bonus was not an accrued benefit. The bonus accrued the day DNI terminated the drivers, no
matter what that date was. It would not, of course, have accrued if the drivers terminated the
employment relationship, because the purpose of the bonus was to keep soon-to-be laid-off workers
on the job until DNI decided to release them.
As a preliminary matter, the Board found ample evidence that DNI would not have withheld
the bonus just for missing one day of work, even if that were for a strike.3 Accordingly, the
“actively at work” language of the offer was not intended to require perfect attendance. Instead,
DNI argues that the bonus was not withheld because of the strike but rather because the combination
of the unannounced strike and the failure of the drivers to give work assurances after the strike
meant that they were not “actively at work” during the six days from the end of the strike to their
layoff. According to this reasoning, then, it was the drivers who did not live up to the terms of the
bonus agreement; therefore, DNI had a legitimate and substantial business justification to refuse to
pay the bonus.
We find two weaknesses in DNI’s argument. First, the language of the offer only obligated
the employees to stay until they were released, and that date was left entirely to DNI’s discretion.
We have found that DNI exercised that discretion when it locked the drivers out after the strike.
Furthermore, in the immediate aftermath of the strike, DNI chose not to give the least-senior drivers
the same opportunity to make work assurances and return to work that it had offered to the senior
drivers. Therefore, we reject DNI’s claim that it refused the bonus because the drivers would not
give work assurances. In addition, after July 1, DNI pronounced the layoffs “unconditional,” and
told the drivers that “[a]ssurances regarding disruptions will have no effect on the layoffs.” DNI
cannot have it both ways, claiming that the strike alone did not prevent the drivers from remaining
“actively at work” but then arguing, after preventing them from returning to work, that the drivers
did not fulfill the requirements to stay at work.4 Consequently, DNI has not persuaded us that it
withheld the bonus for any reason except for the strike.
However, even if the bonus were an accrued benefit withheld because of a strike, DNI could
rebut the finding of an unfair labor practice by showing that it withheld the benefit for a legitimate
and substantial business reason. DNI’s second argument is that it had a legitimate justification for
refusing to pay the bonus because it did not get a quid pro quo for the bonus when the layoffs forced
it to hire replacement workers, which is exactly what the bonus was designed to avoid. We find no
merit in this argument. With the exception of the one-day strike, which DNI admitted was not
enough to invalidate the bonus, the drivers did stay at work until DNI turned them away. The
drivers made clear their willingness to return to work after the strike by showing up on June 27, but
DNI locked them out and then did not offer them an opportunity to give the necessary work
assurances that DNI required.
For the same reasons we also are not persuaded by DNI’s contention that it acted in good
faith in withholding the bonus and therefore did not commit an unfair labor practice. Texaco, 285
3
As DNI’s attorney explained to the NLRB, “DNI is not arguing that the strike disqualified any driver from
receiving the bonus. Nor is DNI arguing that being off work for a few days disqualifies any driver from receiving the
bonus.” And again, “[O]ne night off to exercise a protected right is not a disqualifying criteria for earning the bonus.”
4
DNI argues that it cannot be faulted for locking the workers out because the Acting Regional Director found
the lockout to be lawful. We fail to see how the lawfulness of the lockout plays any role in this matter. It was still DNI
that decided to prevent the drivers from coming to work, and it was DNI that chose not to offer the thirteen least-senior
drivers the same opportunity to give work assurances that it offered the eighteen senior drivers.
Nos. 03-1981/2110 Dayton Newspapers v. NLRB Page 13
N.L.R.B. at 248 n.18 (holding that if employer refuses to pay benefit because it in good faith
believes the benefit is not unconditionally accrued, its nonpayment does not constitute an unfair
labor practice). DNI argued that it believed in good faith that the drivers did not earn the bonus
when they terminated the agreement by failing to stay actively at work. But since it was DNI that
prevented them from staying at work, we do not see how DNI can claim this good-faith belief.
Therefore, we affirm the NLRB’s order and grant enforcement.
V
As a final matter, DNI contends that the ALJ committed reversible error when he stated with
regard to the decisions of the Acting Regional Director and the General Counsel not to file charges
on certain of the Union’s complaints, “You all understand that I’m bound by none of this. The
rulings of the Regional Director. The rulings of the Office of Appeals are not binding on me.” DNI
is correct that, as a general rule, the ALJ’s statement misconstrued the law. The NLRA gives the
General Counsel virtually unreviewable rights to decide what charges should be pursued. § 3(d), 29
U.S.C. § 153(d); NLRB v. United Foods and Commercial Workers Union, AFL-CIO, 484 U.S. 112,
124-26 (1987) (discussing the dichotomy established by the NLRA between the General Counsel,
with “final authority” for deciding what complaints to file, and the Board, with an adjudicative
function); New Otani Hotel and Gardens, 325 N.L.R.B. 928, 946 (1998). However, the General
Counsel’s “final authority” not to file a complaint on a particular charge does not bind the ALJ or
NLRB in a separate but related case. Bryant & Stratton Bus. Inst., Inc. v. NLRB, 140 F.3d 169, 185
(2d Cir. 1998).
Of course, in deciding the “separate but related case” the ALJ cannot contradict the General
Counsel’s findings that some complained-of activity did not constitute an unfair labor practice. “To
hold otherwise would . . . create the undesirable situation of the Board’s acting in practice as a forum
for considering the content of charges which the General Counsel, for reasons satisfactory to
himself, has thought it proper to dismiss.” Times Square Stores, Corp., 79 N.L.R.B. 361, 365
(1948); accord United Foods and Commercial Workers Union v. NLRB, 675 F.2d 346, 351 (D.C.
Cir. 1981); Serv. Employees’ Int’l Union (Children’s Rehabilitation Center, Inc.), 211 N.L.R.B. 982,
982 (1974). Where we believe that the Board might in this case have failed adequately to take into
consideration some aspect of the General Counsel’s findings, we have so stated. Otherwise, the
charges that were eventually filed against DNI constituted a “separate but related case,” and the ALJ
did not use dismissed charges to decide these related matters.
VI
For the foregoing reasons, we AFFIRM the NLRB and grant enforcement of its order to
reinstate the senior drivers locked out as of December 27, 1999, with back pay from that date; to
cease and desist from coercion, threats, and direct dealing; to pay the Stay-to-the-End bonus with
interest to the thirteen least-senior drivers; and to post the usual notices. We REVERSE the NLRB
and deny enforcement of the order to reinstate the thirteen least-senior drivers, and to pay them back
pay.