# Petition — Oil, Chemical & Atomic Workers International Union v. Johns-Manville Products Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0659%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 436 U.S. 956 ## Text Supreme Court, U. &. gem ae MAR 24 1978 \ — IN THE — ae Supreme Court of the United States OCTOBER TERM, 1977 . “77-1351 OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, AFL-CIO, . Petitioner, JOHNS-MANVILLE PRODUCTS CORPORATION and NATIONAL LABOR RELATION BOARD, Respondents. f PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT JERRY D. ANKER WALD, HARKRADER & Ross 4 1320 Nineteenth Street, N.W. Washington, D.C. 20036 JOHN R. TADLOCK JAMES J. CRONIN P. O. Box 2812 Denver, Colorado 80201 VICTOR H. HEss, JR. DENNIS M. ANGELICO HESS & WASHOFSKY 1411 Decatur Street “ New Orleans, Louisiana 70116 Counsel for Petitioner March 24, 1978 WILSON - EPES PRINTING Co.. INC. - RE 7-6002 - WASHINGTON. D.C. 20001 % INDEX Page OPINIONS BELOW — ae 1 .. 2 QUESTIONS PRESENTED * — 2 STATUTES INVOLVED D 2 STATEMENT OF THE CASE 3 The Decision of the NLRB .. 6 The Decision of the Court of Appeals 7 REASONS FOR GRANTING THE WRIT 8 CONCLUSION ............ * — 14 APPENDIX A—Opinion of Court of Appeals la APPENDIX B—Judgment of Court of Appeals 47a APPENDIX C—Notice of Denial of Rehearing ............ 49a APPENDIX D—Decision and Order of NLRB B 50a TABLE OF AUTHORITIES Cases: American Ship Building Co. v. NLRB, 380 U.S. 300 (1965) . 11,12 Hess Oil Virgin Islands Corp., 205 N. L. R. B. 23 (1973) 13 Inland Trucking Co., 179 N. L. R. B. 350 (1969), en- forced, 440 F.2d 562 (7th Cir.), cert. denied, 404 U.S. 858 (1971) 6, 12 Inter Collegiate Press, 199 N. L. R. B. 177 (1972), enforced, 486 F.2d 837 (8th Cir. ne cert. de- nied, 416 U.S. 938 (1974) 13 International Ladies Garment Workers v. „ NLRB, 237 F. 2d 545 (D. C. Cir. 1956) 10 NLRB v. Brown, 380 U.S. 278 (19657 12 II TABLE OF AUTHORITIES - continued * 6 page Supreme Court of the United States NLRB v. Cast Optics Corp., 458 F.2d 398 (3d OCTOBER TERM, 1977 Cir.), cert. denied, 409 U.S. 850 (1972) 10 NLRB v. Clinchfield Coal Co., 145 F.2d 66 (4th C 10 NLRB v. Erie Resistor Corp., 373 U.S. 221 b No. Fee 13 NLRB v. Fansteel Metallurgical Corp., 306 U.S. I 9 “aa Great Dane Trailers, Inc., 388 U.S. 26 * } Ou, CHEMICAL AND ATOMIC WoRKERS NLRB v. Insurance Agents, 361 U.S. 477 (1960) 9 | INTERNATIONAL UNION, AFL-CIO, NLRB v. Local 1229, IBEW, 346 U.S. 464 (1953) 9 Petitioner, NLRB v. Mt. Clemens Pottery Co., 147 F.2d 262 V. r 10 | NLRB v. Ohio Calcium Co., 133 F.2d 721 (6th JOHNS-MANVILLE PRODUCTS CORPORATION p 10 | and NLRB v. Sea-Land Services, Inc., 356 F.2d 955 NATIONAL LABOR RELATION BOARD, (Ist Cir.), cert. denied, 385 U.S. 900 (1966) — 10 | Respondents. NLRB v. Valley Die Casting Corp., 303 F.2d 64 (6th Cir. 19085 .ĩũ„9? 10 | _ NLRB v. Witchita Television Corp., 377 T 578 | PETITION YOR A WRIT OF CERTIORARI TO THE (10th Cir.), cert. dented, 964 U.S. STi (1960) 10 | UNITF® STATES COURT OF APPEALS FOR THE Ottawa Silica Co., 197 N.L.R.B. 449 (1972), en- FIFTH CIRCUIT forced per curiam, 482 F.2d 945 (6th Cir. % 12 ö Sargent-Welch Scientific Co., 208 N. L. R. B. 811 | — —— —— 13 * Stewart Die Casting Corp. v. NLRB, 114 F. 2d 849 Petitioner requests that a writ of certiorari issue to (7th Cir. 1940), cert. denied, 312 U.S. 680 review the judgment of the United States Court of Ap- OS EE si 10 | peals for the Fifth Circuit entered in this case on Au- WGN of Colorado, Inc., 199 N.L.R.B. 1058 (1972). 13 | gust 19, 1977. Statutes: | OPINIONS BELOW National Labor Relations Act: The opini 0 f th 7 rt f A al N rted 5 n of the Court of Appeals is repo at 557 Section 7, 29 A — 2,8 | F.2d 1126 and reprinted in Appendix A (la). The Deci- Section 8, 29 U.S.C. § 158 ....... — 3, 6,8 | sion and Order of the National Labor Relations Board, 2 including the Decision of the Administrative Law Judge, are reported at 223 N.L.R.B. 1317 and reprinted in Appendix D (50a). JURISDICTION The judgment of the Court of Appeals (Appendix B) was entered on August 19, 1977, and petitions for rehear- ing were denied on October 26, 1977 (Appendix C). By an order dated January 13, 1978, Mr. Justice Powell extended the time for filing a petition for certiorari to and including March 25, 1978. This Court’s jurisdiction to review the judgment below is based on 28 U.S.C. § 1254(1). QUESTIONS PRESENTED 1. Whether the occurrence of some disruption of an employer’s operations during collective bargaining nego- tiations constitutes an “in-plant strike“ which permits the employer to hire permanent replacements for all union- represented employees, where there is no proof and no finding that all or even a substantial number of such employees engaged in any disruptive activities. 2. Whether an employer that has locked out its em- ployees in connection with a collective bargaining dispute may permanently replace such employees with new hires. STATUTES INVOLVED Section 7 of the National Labor Relations Act, 29 U.S.C. § 157, provides in pertinent part as follows: Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mu- tual aid or protection.... 3 Section 8 of the National Labor Relations Act, 29 U.S.C. § 158, provides in pertinent part as follows: (a) it shall be an unfair labor practice for an em- ployer— (1) to interfere with, restrain, or coerce employ- ees in the exercise of the rights guaranteed in sec- tion 7; * 0 * * (3) by discrimination in regard to hire or tenure of employment or any term or condition of employ- ment to encourage or discourage membership in any labor organization (5) to refuse to bargain collectively with the rep- resentatives of his employees STATEMENT OF THE CASE Petitioner Union was the collective bargaining repre- sentative of approximately 107 production and mainte- nance employees at the New Orleans plant of respondent Johns-Manville Products Corporation. On September 11, 1973, the Union and the Company commenced negotiations for a new collective bargaining agreement, to replace one which was due to expire on October 12, 1973. The negotiations were unsuccessful, due largely to the Com- pany’s insistence upon certain proposed changes in the prior agreement, particularly one which would have de- leted a provision requiring the Company to train its own employees to fill mechanical positions rather than hiring mechanics from outside. On October 31, 1973, the Company announced that the plant would be shut down until an agreement was reached. Two weeks later, on November 14, the Company resumed production with temporary replacements, consisting of 4 employees from its other plants, supervisors, and some newly-hired temporary employees. Thereafter, in April 1974, the Company began to hire permanent replace- ments. Although negotiations with the Union were con- tinuing during this period, the Company did not inform the Union in advance of its decision to hire permanent replacements, nor did it bargain with the Union concern- ing this action. Ultimately all of the former employees were permanently replaced. The Company contended that its decision to close the plant on October 31, and its subsequent decision to per- manently replace the entire workforce, were prompted largely by acts of sabotage which it claims were com- mitted by employees during September and October 1973. The Administrative Law Judge who heard the evidence made extensive findings with respect to this issue, which were adopted in full by the NLRB and left undisturbed by the Court of Appeals.“ These findings may be briefly summarized as follows: The Company’s plant manufactures dried felt, a crude form of paper which is used as the base for asphalt roof- ing materials. This product is made from a slurry of paper, pulpwood, and water, which is first compressed to form a sheet capable of supporting its own weight, then processed across a conveyor belt onto dryer drums or rollers until most of the remaining moisture is removed, after which it is wound on a reel and cut into rolls. In the course of this process, the sheets sometimes break, either because of a maladjustment in the rollers, a defect in the slurry mixture, or foreign objects in the equipment. The sheets can also easily be broken, deliberately or acci- dentally, by hand. In addition, the rollers and other equipment sometimes break down due to the presence of scrap metal or other foreign objects. 1The Court of Appeals stated: “We agree with the factual find- ings cf the Administrative Law Judge and the Board, but not with the conclusions they reached.” (12a.) 5 Although paper breaks and equipment malfunctions occur quite regularly, the Company claimed that such incidents occurred with excessive frequency during periods of collective bargaining negotiations, both in the past and in 1973. There was evidence that there were more paper breaks than usual in September and October.“ In addi- tion, in early October “the Respondent found that a 2,300-volt switch had been disconnected causing a shut- down of the mill. Dvring this same period there were also some maladjustments in the dryer sections, as well as damage to a cylinder wire which appeared to have been clearly and sharply cut... .” (77a). Because of these problems, the Company laid off its production force from October 12 through 21, to enable its maintenance em- ployees to inspect and repair all equipment (51a). Shortly after production was resumed, “[o]n October 22 or 23, 1973 all three defibrators were inoperable because heavy foreign materials were lodged between the segments with- in the equipment.. (78a.) On the same day, there was also an unsually high incidence of paper breaks, “re- sulting in the production of only 13% tons of paper as compared to a normal day’s production of 110 to 120 [tons].” (78a.) The Company did not conduct any investigation to de- termine which (if any) of its employees were responsible for these incidents, nor did it make any effort to obtain an investigation by law enforcement authorities. At the NLRB hearing, it “did not introduce any evidence which identified any employee who was even alleged to be responsible for such activities.” (97a.) Nevertheless, it The Court of Appeals also referred to the fact that “[a]n inor- dinate number of paper breaks occurred on or about August 21 or 22, 1973 which were the result of improper adjustment of dryer section controls.” (4a.) Although the Company suggested, and the court seemed to infer, that this incident was related to the negotia- tions, this seems highly unlikely since the negotiations did not even commence until three weeks later, on September 11. 6 contended that the disruptions were the result of de- liberate, concerted action by the employees. The Administrative Law Judge found, however, that the evidence was “insufficient to support a conclusion and finding that Respondent’s employees were engaged in concerted improper conduct.” (97a.) He pointed out that paper breaks can be “caused by several unintentional factors as well as by intentional acts,” and that the fre- quency of such events was sometimes “erratically un- stable” even during nonnegotiating periods. (98a.) He further found that, even if sabotage could be inferred from the evidence, “‘such activities could have been car- ried out by a single individual, acting on his own behalf and not on behalf of, or in concert with, other employees or the Ur ion.“ (99a.) He noted that the Union had not “advocated, initiated or condoned” any disruptive activi- ties. (99a.) The Decision of the NLRB Both the Administrative Law Judge and the Board held that the Company had the right, after reaching a bargaining impasse, to lock out its employees, and that it also had the right to operate its plant during the lock- out with temporary replacements.* They further held, however, that when the Company hired permanent re- placements it violated Sections 8(a)(1), (3), and (5) of the National Labor Relations Act. Such action, the Board held, was “inherently discriminatory and destruc- tive of said employees’ protected rights” (103a), “com- Board Member Jenkins dissented from the holding that the Com- pany had the right to utilize temporary replacements during the lockout. On the basis of his dissenting opinion in various prior cases and the Seventh Circuit’s decision in Inlend Trucking Co. v. NLRB, 440 F.2d 562 (7th Cir.), cert. denied, 404 U.S. 858 (1971), he would have held that even the temporary replacement of locked-out em- ployees is prohibited by Sections 8(a)(1) and (3) of the Act. (56a-59a.) oe 7 pletely destroyed the bargaining unit“ and “constituted a withdrawal of recognition” of the Union. (52a-53a.) The Board emphasized that the Company “did not have reasonable and sufficient objective considerations upon which to conclude that ‘any or all of its employees’ were engaged in improper conduct so as to justify discharge of all production employees.” (53a.) The Decision of the Court of Appeals A divided Court of Appeals (Judge Wisdom dissent- ing) ‘reversed the decision of the Board. The majority held that “as a matter of law, the employees were in- volved in what amounted to an in-plant strike” (12a), and that the employer therefore had a right to hire permanent replacements in accordance with the well- established rule that “strikers” can be permanently re- placed. The court found it unnecessary to reach the question of whether an employer may permanently re- place locked-out employees. Judge Wisdom, in dissent, emphatically rejected the majority’s conclusion that there was an “in-plant strike.” He pointed out, inter alia, that there was “less than one additional paper break per shift during August through October 1973” (20a), that excessive paper breaks had also occurred “in January, May, and July of 1973, long before any negotiations” (20a), and that with the excep- tion of a single day—October 22—production during the period of the alleged “strike” ranged from 104 to 112 tons per day, very close to the normal average of 110 tons per day. (22a.) He also demonstrated that the evidence fully supported the Board’s finding that all of the inci- dents of disruption, if they were caused by employees at all, could have been caused by only “one or two or a handful of workers.” (24a.) The dissent further argued that the majority’s decision was contrary to all precedent. Sabotage of an employer’s 8 operations, Judge Wisdom pointed out, is not a “strike” but an unprotected activity, and the employees en- gaging in such activity may be fired or otherwise penal- ized, not merely replaced. The prior cases uniformly hold, however, that such action may be taken only against those employees who have been shown to have engaged in the improper activity. (25a-28a.) The majority’s holding, the dissent said, “has given employers a lethal new tool to combat future unioniza- tion and to avoid the process of collective bargaining. . . . Companies will be encouraged to thwart bargaining and unionization by visiting the sins of the few on the many, causing unemployment on those who seek to exercise their section 7 rights.” (30a.) Having rejected the basis for the majority’s opinion, the dissent found it necessary to reach the question of whether an employer who locks out his employees may thereafter permanently replace them. After a lengthy analysis of the facts and applicable legal principles, the opinion concluded that such permanent replacement was unlawful under Sections 8 (a) (1) and (3) of the Act, 29 U.S.C. § 158 (a) (1), (3). (31a-46a.) REASONS FOR GRANTING THE WRIT I. Certiorari is warranted in this case to review the unprecedented holding of the Court of Appeals that evi- dence of participation by some employees in disruptive activities permits the permanent replacement of the entire workforce. This startling decision is in conflict with all prior cases, including decisions of this Court and many courts of appeals. Unless reversed, the decision will cause conflict and confusion—and foster litigation—in an area of the law which has long been regarded as settled, and will encourage employers to use the misconduct of 9 some employees as a pretext for depriving all others of the rights guaranteed by the National Labor Relations Act. The problem presented in this case is a recurring one, since unlawful conduct, including violence and destruction of property, is unfortunately not an uncommon occurrence on the American labor-relations scene. Cases dealing with such conduct—both by employers and by employees— are legion. But no court has ever previously held that an employer may terminate or permanently replace all of his employees because of the misconduct of a few. As the dissent below pointed out, the majority cited “no section of the Act, no decision of a court, no holding of the Board, and no argument of labor policy in support of its conclu- sion. There is no citation because no supporting case exists.” (24a-25a.) In NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240 (1939), this Court held that an employer may discharge employees who engage in unlawful or “unprotected” ac- tivities—in that case, the seizure and physical occupation of the employer’s buildings. But the Court made clear that only the actual perpetrators of the offense could be dismissed. The Court spoke of the employer’s “right to discharge the wrongdoers from its employ,” “to dis- charge those responsible for the unlawful seizure.” 306 U.S. at 254 (emphasis added). Similarly, in NLRB v. Local 1229, IBEW, 346 U.S. 464 (1953), the Court sustained the discharge of nine employees who had en- gaged in unprotected conduct, but held that a tenth em- ployee had been improperly discharged because he had not participated in the offense. And in NLRB v. Insur- ance Agents, 361 U.S. 477, 493-94 (1960), the Court noted that an employer “could have discharged or taken other appropriate disciplinary action against the em- ployees participating in these ‘slow-down,’ ‘sit-in,’ and arguably unprotected disloyal tactics.” (Emphasis added.) 10 Consistently with these cases, the courts of appeals have uniformly held that only those employees who are shown to have been guilty of unlawful or unprotected activities may be terminated. “Certainly all the em- ployees should not be deprived of the benefits of the Act because certain undisclosed ones forfeited their rights.” Stewart Die Casting Corp. v. NLRB, 114 F.2d 849, 856 (7th Cir. 1940), cert. denied, 312 U.S. 680 (1941). An employer may not discharge employees “who took no part in the disturbance.” NLRB v. Clinchfield Coal Co., 145 F.2d 66, 72 (4th Cir. 1944). The violent conduct of some employees “is not . . . to be imputed to other union members in the absence of proof that identifies others as participating in such violence.” NLRB v. Mt. Clemens Pottery Co., 147 F.2d 262, 268 (6th Cir. 1945). “An act of violence by a participant in a strike may not be imputed to others generally or to the union in the absence of a showing of agency, ratification, counselling, incite- ment, or other form of participation in the act of violence by others or by the union.” NLRB v. Sea-Land Services, Inc., 356 F.2d 955, 966 (1st Cir.), cert. denied, 385 U.S. 900 (1966). Employees have “no obligation to disavow misconduct which they did not initiate and with which they are not shown to have been connected,” and their failure to do so “provides no rational basis for inferring that they acquiesced in the wrongs of others with whom no agency relationship is shown.” International Ladies Garment Workers v. NLRB, 237 F.2d 545, 552 (D.C. Cir. 1956). “The law is settled that an employee’s dis- qualification for reinstatement must be based upon evi- dence that he personally participated in misconduct.” NLRB v. Wichita Television Corp., 277 F.2d 579 (10th Cir.), cert. denied, 364 U.S. 871 (1960). See also NLRB v. Cast Optics Corp., 458 F.2d 398, 406 (3d Cir.), cert. denied, 409 U.S. 850 (1972); NLRB v. Valley Die Cast Corp., 303 F.2d 64, 67 (6th Cir. 1962); NLRB v. Ohio Calcium Co., 133 F.2d 721, 726 (6th Cir. 1943). — ———— I důe ee 11 The decision below is squarely in conflict with all of these cases. It is also in conflict with a fundamental principle of our jurisprudence—namely, that only the guilty may be punished. To be sure, one consequence of that principle is that wrongdoers who cannot be identified will go unpunished. But our system has always preferred that result to the imposition of communal guilt and the punishment of the innocent. Aside from being in conflict with precedent and basic juridical principles, the decision below can only have mis- chievous results. It would encourage employers, instead of seeking to identify and punish wrongdoers, to use the occurrence of any misconduct as a basis for depriving innocent employees of their statutory rights. Even in this case, the Company made no effort to find out who was responsible for the disruption, perhaps because it preferred to use it as a means of ridding itself of an unwanted union. If the law permits this result, em- ployees who would otherwise refrain from improper con- duct might be tempted to participate, since they would be subject to punishment whether they did so or not. We believe the decision below is.so plainly wrong that this Court should reverse it summarily, without further briefs or argument. But in any event, the issue pre- sented is sufficiently important and recurring, and the decision so squarely in conflict with prior precedent, as to require review by this Court. II. A separate question presented by this case is whether, quite apart from any disruption, an employer may hire permanent replacements for employees who have been locked out because of a collective bargaining dispute. In American Ship Building Co. v. NLRB, 380 U.S. 300 (1965), this Court held that it is not a violation of the 12 National Labor Relations Act for an employer to lock out its employees after a bargaining impasse, but ex- pressed “no view whatever as to the consequences which would follow had the employer replaced his employees with permanent replacements or even temporary help.” 380 U.S. at 308 n.8. In a companion case, NLRB v. Brown, 380 U.S. 278 (1965), the Court held that it was not unlawful for a group of employers to utilize tem- porary replacements during a lockout instituted as a “defensive measure” in response to a whipsaw strike. But Brown did not hold that permanent replacements could be used even in that circumstance, see 380 U.S. at 292 n.6; id. at 293 (concurring opinion of Mr. Justice Goldberg), and American Ship left open the question whether even temporary replacements could be used if the lockout is “offensive” rather than “defensive” in character—i.e., if its purpose is to bring economic pres- sure on the union and the employees, rather than to counteract pressure brought by the union. This appears to be the first case which has raised the permanent-replacement issue, although there have been several cases since Brown and American Ship involving temporary replacements. The Board initially held that the use of temporary replacements during an offen- sive lockout was unlawful, and its decision was affirmed by the Seventh Circuit. Inland Trucking Co., 179 N.L.R.B. 350 (1969), enforced, 440 F.2d 562 (7th Cir.), cert. denied, 404 U.S. 858 (1971). After a change in the membership of the Board, however, a conflict in views developed, with two new members (Kennedy and Pen- nello) taking the position that the use of temporary replacements is permissible, two old members (Fanning and Jenkins) adhering to the Inland Trucking view that such use is not permissible, and the fifth member (Chair- man Miller) taking the position that each case must be decided on the basis of its own facts and circumstances. See Ottawa Silica Co., 197 N.L.R.B. 449 (1972), enforced 13 per curiam, 482 F.2d 945 (6th Cir. 1973); Inter Col- legiate Press, 199 N.L.R.B. 177 (1972), enforced, 486 F.2d 837 (8th Cir. 1973), cert. denied, 416 U.S. 938 (1974); WGN of Colorado, Inc., 199 N.L.R.B. 1053 (1972); Hess Oil Virgin Islands Corp., 205 N.L.R.B. 23 (1973); Sargent-Welch Scientific Co., 208 N.L.R.B. 811 (1974). Despite these conflicting views concerning temporary replacements, the Board had no difficulty deciding in this case that the permanent replacement of locked- out employees was unlawful. As the Board noted, such action utterly destroyed the employees’ right to bargain collec- tively, since the consequence of their exercise of that right was the loss of their employment.“ Although we believe the Board’s decision was clearly correct, the issue is of such fundamental importance that it should be definitively settled by this Court. Furthermore, the Court’s decision would also tend to shed light on the more difficult issue of whether locked-out employees may be temporarily replaced, as to which the cases are now in conflict.“ We recognize that this Court sometimes prefers not to review an issue which was not decided by the Court of Appeals. Thus, the Court may conclude that the question of whether an employer has a right to hire permanent replacements for locked-out employees is not yet ripe for As this Court has held, employer actions which are “inherently destructive” of rights guaranteed by the Act are unlawful regard- less of the employer’s subjective motive. See, e.g., NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967); NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963). The temporary-replacement issue is not directly presented here, since the Union did not seek review in the Court of Appeals of the Board’s holding that the employer’s use of temporary replacements in this case was not unlawful. However, any decision by this Court on the permanent-replacement issue would tend to clarify the law as to temporary replacements as well. 14 review, since it was not decided by the court below. In that event, we urge the Court to grant certiorari with respect to the other issue in the case, and if the judg- ment below is reversed, to remand the case to the Court of Appeals for consideration of the remaining issue. CONCLUSION For the reasons stated, this petition for a writ of cer- tiorari should be granted, and the judgment below should either by summarily reversed or the case set for plenary consideration of one or both of the issues presented. March 24, 1978 Respectfully submitted, JERRY D. ANKER WALD, HARKRADER & Ross 1320 Nineteenth Street, N.W. Washington, D.C. 20036 JOHN R. TADLOCK JAMES J. CRONIN P. O. Box 2812 Denver, Colorado 80201 VICTOR H. HESS, JR. DENNIS M. ANGELICO HESS & WASHOFSKY 1411 Decatur Street New Orleans, Louisiana 70116 Counsel for Petitioner Appendices la APPENDIX A UNITED STATES COURT OF APPEALS FIFTH CIRCUIT No. 76-2444 JOHNS-MANVILLE PRODUCTS CORPORATION, Petitioner-Cross Respondent, V. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner. Aug. 19, 1977 Rehearing and Rehearing En Banc Denied Oct. 26, 1977 Before WISDOM, GEE and FAY, Circuit Judges. FAY, Circuit Judge: This case is before the Court on a petition for review and to set aside an Order of the National Labor Rela- tions Board and on a cross-application by the Board seeking enforcement of its Order. The Board affirmed the findings and conclusions of the Administrative Law Judge and adopted his Order in its entirety,’ holding that the petitioner, Johns-Manville Products Corporation, violated Sections 8 (a) (1), 8(a) (3), and 8(a) (5) of the National Labor Relations Act [the Act], as amended, 29 1 The Board’s Decision and Order are reported at 223 NLRB No. 189 (1976). 2a U.S.C. 8 151 et seq.,? by unilaterally hiring permanent replacements for employees who had been lawfully locked out. As a remedy, the Board ordered, in addition to cease and desist provisions, that the Company reinstate the one hundred and seven locked out bargaining unit employees with back pay and, upon request, to bargain with the Oil, Chemical and Atomic Workers International Union, AFL-CIO [the Union]. After carefully examining the record, this Court finds that the Board erred in its con- clusions. Therefore, we set aside the Board’s Order and decline to enforce it. 2 The pertinent statutory provisions are as follows: 29 U.S.C. § 158 [§ 8, National Labor Relations Act] (a) It shall be an unfair labor practice for an employer— (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title ... (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organi- zation ... (5) to refuse to bargain collectively with the representa- tives of his employees, subject to the provisions of section 159 (a) of this title „The Johns-Manville Products Corporation, Respondent herein, its officers, agents, successors and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against em- ployees in regard to hire or tenure of employment, or any term or condition of employment because of protected con- certed activities. (b) In any other manner interfering with, restraining or coercing employees in the exercise of their rights guar- anteed in Section 7 of the Act except to the extent that such rights may be effected by lawful agreements in accord with Section 8(a)(3) of the Act.” This Court has jurisdiction under Section 10(e) and (f) of the National Labor Relations Act, 29 U.S.C. §160(e) and (f). 3a THE FACTS The petitioner is engaged at its New Orleans plant in the manufacture of “organic felt,” which is a crude form of paper used as a base for asphal; roofing products which the Company produces at its plants in Georgia, Louisiana and California. The procedure for making or- ganic felt consists of a series of steps by which the two basic raw materials, waste wood chips and waste paper, are decomposed, blended with water, and then dried out to finally form paper sheets. Breaks in the paper, es- pecially while still a damp “web”, can be caused by strik- ing the water mixture (the “slurry”) or the finished sheet with one’s finger or an object, or by changing the proper revolutions per minute of the rollers in the various dryer sections. Damage can also be caused by improperly adjusting the valves controlling the blending of paper and wood slurry stock. The evidence shows that sabotage in all these forms can be carried on surreptitiously, making it difficult if not impossible to observe the guilty individual or individuals.“ Further, the large size of the physical plant precluded constant surveillance of the operations.“ After this Company purchased the New Orleans plant in 1964, the Union was certified by the Board as the unit employees’ exclusive collective bargaining representative.’ Since that time, the Company and the Union have entered into fcur successive two-year contracts, the latest of which 5’ Government witness St. Angelo testified that the sheets, par- ticularly at the point just in front of the dryer section, can easily be broken and that this can be done without others in the vicinity observing it. »The operations are housed in five separate buildings having a total of approximately forty thousand square fect of floor space and are conducted by three shifts of employees per day. A substantial number of these employees had worked for the former owner of the plant, Flintkote Company, and had been repre- sented by the Union since 1947. 4a was due to expire on October 12, 1973. Negotiations be- gan in September 1973, following the Union’s service of its 60-day notice of termination of contract. The parties met several times for the purpose of negotiating a new collective bargaining contract, but the parties could not agree in several areas.“ Prior to and during the negotiation period, the Com- pany experienced an unusual amount of production dis- ruption which became more widespread and serious as negotiations progressed. An inordinate number of paper breaks occurred on or about August 21 or 22, 1973 which were the result of improper adjustment of dryer section controls. On August 23, Darrell Wells, the Company’s Employee Relations Manager for the New Orleans plant, telephoned Ernest Rousselle, the Union’s International Representative, and informed him of this problem. Wells said this type of activity could “only hurt negotiations” and that the plant was not going to continue to operate and make scrap. Rousselle replied that he would check with Local Union officials and get back to him. However, Rousselle did not contact Wells on this subject and the next time it was discussed was at a bargaining meeting held about two months later on October 3, 1973. ® Apparently the most controversial proposal by the Company would have permitted it to hire mechanics from outside the bar- gaining unit, relieving it of the obligation to train maintenance department employees to do mechanics’ work. The Company urged this proposal, contending that the lack of sufficiently trained main- tenance people was affecting its maximum productivity. The Union opposed this change because it believed that senior maintenance employees would be laid off in favor of less senior, but more skilled mechanics hired from the outside. The parties also disagreed on the duration of a new contract and a wage increase, the Company suggesting a three year contract and conceding to a 17, 20, and 25 cent wage increase per year, and the Union asking for a one year contract with a 30 cent wage increase each year. Further, in addi- tion to other proposals from each side, the Company wanted to de- lete a no-strike, no slowdown, no work stoppage, and no lockout clause, and the Union wanted increased fringe benefits. 5a From September 1 through October 22, 1973, accord- ing to the record, the number of paper breaks during production periods was fifteen to twenty per week in con- trast to one to three per week during periods when ne- gotiations were not in progress.“ Moreover, these breaks occurred on a daily basis and on all three shifts, with the excessive number of paper breaks generally coinciding with negotiation sessions. Paper breaks were not the only problem. On the day before the October 3rd bargaining meeting, for example, the fine mesh stainless steel surface of a cylinder on one of the paper forming machines was “sharply cut” along its circumference. James Weil, the Company's plant man- ager, testified that in thirty-five years experience he had never seen that kind of damage to a cylinder and that usually the type of damage resulting from wear and tear to such cylinders consists of dents or cuts, which are generally across the cylinder, rather than in the direction of its circumference. The repair of this cylinder cost approximately $4,000. On the same day it was discovered that a 2,300 volt electrical switch had been opened or disconnected causing a complete shutdown of the mill. This switch is located in the defibrator building, separate and apart from the building in which excessive paper breaks were occurring. The uncontradicted testimony is that this incident could not have happened accidentally because the switch is held ® Based on the conflicting testimony presented at the hearing, the Administrative Law Judge found that the more accurate number of paper breaks during non-negotiating periods would be about eight per week: I find the frequency rate of paper breaks during the non- negotiating periods was about eight (8) per week, instead of three (3) per week as Respondent [the Company] contends, or considerably more per week as the employee witnesses con- tend. This figure makes allowance for inaccuracies and bias on the part of witnesses for both parties. 6a in a closed position, not only by a mechanical catch, but also by a heavy rubber band. Weil saw the switch in the open position with the broken rubber band on the floor. Despite the absence of the rubber band, the me- chanical catch would have been sufficient to hold the switch closed, if it too had not been released. As a result of the above described production disrup- tion and damage, James Weil approached the Union’s president, Mack Jordan, and asked him to see whether anything could be done about individuals tampering with equipment and causing production delays. Jordan was angered by Weil’s request, did not respond to him, and took no affirmative action. At the negotiation meeting on the following day, October 3, 1973, Rousselle said he was “disturbed” because on the previous day Weil had accused Mack Jordan and other Union members of de- liberately disrupting production.“ Wells responded by saying that the Company would not tolerate a continua- tion of disruptions in production and that they interfered with “the climate of the negotiations’. Wells then made an “official” request of the Committeemen that they see to it that production disruptions cease immediately. None of them made any reply to this request. Immediately thereafter, a vibration developed in one of the three defibrators requiring it to be shut down. Ball bearings were discovered between its rotating grinding dises. Sometime about October 11, 1973, the Union held a strike vote among the bargaining unit employees and Rousselle thereafter applied to the International for strike 10 At the meeting, Rousselle also explained that several months earlier he showed the Company a large piece of metal which was found in the raw materials, and that Mr. Weil had stated at that time that the Company was purchasing the paper chips from any place they could get them and that the Company was not accusing the employees of causing the breakdowns which resulted from the foreign materials. 7a authorization which it granted on October 23, 1973. Al- though a strike vote had been taken and a strike au- thorized, Rousselle admitted he never presented any Com- pany offer to the rank and file for a vote. At the October 12th negotiation meeting the parties had reached a bargaining impasse. By October 11th and 12th, paper breaks on both form- ing machines were so frequent that the machines became inoperable because the pits beneath them were filled with scrap paper. At this point the Company decided to cease operations and lay off 70-80 production employees for a few days. During this time a maintenance crew checked and repaired all the machinery, determining that the re- cent paper breaks and other problems were not the result of machinery or equipment malfunctioning. Wells tes- tified : I found as a result of the shut down... there was nothing found during that period of time that would have contributed to the vast number of breaks that we had on the machines. The Company recalled production employees on October 22nd in the hope that operations would return to normal. However, sabotage of products and equipment reached a crescendo on that date. The record shows that all three defibrators were jammed with junk metal and had to be shut down and that there was a multitude of paper breaks. The Government’s rebuttal witness Donald Hall agreed the situation was “unusual.” On his 3:00 p.m. to 11:00 p.m. shift there were as many as six breaks an hour on one machine. Paper breaks on the 22nd were so numerous that in the twenty-four hour period on that date, only thirteen and one-half tons of felt were produced, com- pared to normal daily production of one hundred and ten to one hundred and twenty tons. Jim Weil, an expert with over thirty years experience in the paper industry, testified that if the scrap metal found in the bins and screw conveyor chamber had worked 8a its way to the grinding surfaces of the discs, they would have caused an explosion which could have severely dam- aged the machine and endangered human lives. Due to the continuing sabotage, it was decided be- tween October 22 and October 31 that plant operations could not continue without serious risk to lives and property. On October 31, 1973, the Company held a meeting first with the Union Committee and then with all the production employees, informing them that it had been decided to discontinue operations with bargaining unit personnel until a contract was agreed upon. A letter to this effect was also sent by registered mail to the home of each employee. The Company’s spokesman ex- plained that the decision to lay off the employees had been made primarily to protect the employees’ safety and to preserve the Company’s assets. Additional reasons given for the lock-out were the Union’s unreasonable de- mands, unresponsive attitude and willful acts, as well as the history of sabotage during prior negotiations between the parties.“ When the Company representatives finished speaking, Union Representative Rousselle stated, “You let us go before and we will go again. We can hold out to any amount of pressure you can give us. We will not settle for any less than the other plants.” A Union Committeeman added, “We don’t care if you shut the plant down for six months.” “ 11 Testimony at the hearing before the Administrative Law Judge shows that similar incidents of sabotage had occurred in earlier negotiations. During ten weeks of the negotiations resulting in the 1965 contract, there was an average of 9.3 paper breaks per week. In the 1969 negotiations there was a forced shutdown from October 11 through October 27 because fifteen to twenty paper breaks during the week of October 6 had caused the pits to fill up. During the 1971-72 negotiations, paper breaks averaged fifteen to twenty per week from January, 1972 until May or June, 1972 when the contract was settled. 12 The six month time period refers to the maximum period the employees might be eligible for unemployment compensation bene- fits, assuming it was determined that the employees were not in- The plant was indeed shut down and the production employees laid off. On November 14, 1973, the Com- pany resumed partial operations using temporary re- placements and employees loaned by the Company’s other plants. The parties continued to meet for the purpose of ne- gotiating a new contract. On November 14, 1973, the same day the Company resumed partial production with temporary replacements, the Company presented an im- proved proposal to the Union. The Union rejected the Company’s proposal and offered a counterproposal, which the Company rejected. Subsequent meetings were held on November 27 and November 30, 1973, and on January 23 and March 20, 1974, but the impasse continued. Reports to the Company concerning the output and profitability of the New Orleans operation during the time when temporary replacements were being used indicated that the Company was losing approximately $300,000 per month in pre-tax profits. Further, due to vastly reduced output, the Company had been forced to curtail opera- tions at two other plants which relied on New Orleans for paper. The record reveals that the Company rep- resentatives involved in negotiations or responsible for the New Orleans operation met together after the March 20th negotiations to consider the alternatives. According to the testimony, there were four reasons for their con- clusion that the only course left was to hire permanent replacements: (1) with contract negotiations stalemated, it did not seem reasonable to resume operations with volved in a labor dispute. From the end of October through the month of April, eighty-eight of the one hundred seven members of the bargaining unit applied for and were awarded such benefits, see Johns-Manville Products Corp. v. Doyal et al., 510 F.2d 1196 (5th Cir. 1975). Employees received 54% of their average gross weekly pay. In addition to unemployment benefits the Union also provided the employees with weekly benefits, characterized by Rousselle as “lock-out benefits.” 10a bargaining unit employees without a contract, based on the history of sabotage and disruption preceding the lay- off on October 31, 1973; (2) the use of salaried em- ployees and temporary hourly replacements was not pro- ducing the required volume and the costs were excessive ; (3) the Company was suffering an economic loss of be- tween $280,000 and $300,000 per month, which from November 1, 1973 through March 31, 1974, amounted to a total of about $1.5 million; and (4) the adverse effect the New Orleans labor dispute was having on other plants within the residential products division, in- cluding a decrease in the number of employees and days of operations. After the Company decided it was necessary to hire permanent replacements, it started interviewing appli- cants. Although seven new people started working the second week of April, 1974, the full one hundred seven employees were not replaced until late June or early July. On June 12, 1974, before the workforce was com- pletely replaced, the parties met and bargained, but with- out success. FINDINGS The le of this Court in reviewing the order of the Nation: Labor Relations Board is to determine whether the Board’s decision is supported by substantial evidence on the record as a whole,” or is a proper application of the law. This Court has the utmost respect for findings and conclusions of the Board, but recognizes that their judgment is not “the last word.” As the Supreme Court 13 NLRB v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 983, 13 L.Ed. 2d 839, 849 (1965); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). 14 Labor Board v. Wilcox Co., 351 U.S. 105, 112-13, 76 S.Ct. 679, 100 L.Ed. 975 (1956), NLRB v. Insurance Agents Intern’l Union, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960). lla stated in N.L.R.B. v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965) : It is argued, finally, that the Board’s decision is within the area of its expert judgment and that, in setting it aside, the Court of Appeals exceeded the authorized scope of judicial review. This proposition rests upon our statement in Buffalo Linen [Labor Board v. Truck Drivers Union, 353 U.S. 87, 77 S.Ct. 643, 1 L.Fd.2d 676 (1957)] that in reconciling the conflicting interests of labor and management the Board’s determination is to be subjected to “limited judicial review.” 353 U.S., at 96 [77 S.Ct. 643]. When we used the phrase “limited judicial review” we did not mean that the balance struck by the Board is immune from judicial examination and reversal in proper cases. Courts are expressly empowered to enforce, modify or set aside, in whole or in part, the Board’s orders, except that the findings of the Board with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. National Labor Relations Act, as amended, 88 10 (e), (f), 29 U.S.C. 88 160 (e), (f) .... Courts should be “slow to overturn an administrative decision,” Labor Board v. Babcock & Wilcox Co., 351 U.S. 105, 112 [76 S.Ct. 679, 100 L.Ed. 975], but they are not left “to ‘sheer accept- ance’ of the Board’s conclusions,” Republic Aviation Corp. v. Labor Board, 324 U.S. 793, 803 [65 S.Ct. 982, 89 L.Ed. 1872]. Reviewing courts are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the con- gressional policy underlying a statute. Such review is always properly within the judicial province, and courts would abdicate their responsibility if they did not fully review such administrative decisions. 12a Of course due deference is to be rendered to agency determinations of fact, so long as there is substantial evidence to be found in the record as a whole. But where, as here, the review is not of a question of fact, but of a judgment as to the proper balance to be struck between conflicting interests, “[t]he defer- ence owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress.” Ameri- can Ship Building Co. v. Labor Board, [380 U.S. 300, 318, 85 S.Ct. 955, 957, 13 L.Ed.2d 855 (1965) [footnote citation omitted]. 380 U.S. 278, 290-92, 85 S.Ct. 980, 987, 13 L.Ed.2d 839. In the instant case the Board, in accordance with the finding of the Administrative Law Judge, held that “the evidence in this record is insufficient to support a con- clusion and finding that [the Company’s] employees en- gaged in an in-plant strike or in concerted improper conduct so as to enable it to replace or discharge its entire complement of production employees.” We agree with the factual findings of the Administrative Law Judge and the Board, but not with the conclusions they reached. | Based on the facts as discussed above, this Court finds that, as a matter of law, the employees were involved in what amounted to an in-plant strike. The employees’ conduct was so severe that we cannot help but find that their behavior was tantamount to a strike and forced the Company to lock them out. The Company’s reaction had a valid, substantial business justification and there was no anti-union motivation indicated by the record or found by the Board or asserted by the Union. The his- tory of the relationship between the parties reveals the Company’s continuing desire to negotiate and full recog- nition and acceptance of the Union, notwithstanding nu- — 18a merous incidents of prior sabotage by the employees. In the most recent negotiation period, Company manage- ment on at least two occasions requested Union officials to see if something could be done about individuals caus- ing damage and disruptions; the Union never responded, or expressly denied the allegations. In the interest of public policy and industrial peace, we cannot condone behavior which causes actual and substantial damage to property or potential, serious injury to human lives. Al- though employees and employers are permitted to choose their own weapons in the bargaining battle,“ the em- ployees in the instant case went too far. Since we find their actions amounted to a strike, the Company’s subse- quent lock-out and hiring of permanent replacements were not violative of the National Labor Relations Act, including Sections 8 (a) (1), (3) and (5). National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381 (1938). This 18 Quoting from NLRB v. Insurance Agents, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960), the Supreme Court has stated: Our decisions hold that Congress meant that these activities [attempting to exert economic strength], whether of employer or employees, were not to be regulable by States any more than by the NLRB, for neither States nor the Board are “afforded flexibility in picking and choosing which economic devices of labor and management would be branded as unlawful.” “ Rather, both are without authority to attempt “introduce some standard of properly ‘balanced’ bargaining power,“ . or to define “what economic sanctions might be permitted negoti- ating parties in an ‘ideal’ or ‘balanced’ state of collective bar- gaining.” Lodge 76, Etc. v. Wisconsin Employment Relations yt 427 U.S. 132, 96 S.Ct. 2548, 2557, 49 L.Ed.2d 396 See also, Inter-Collegiate Press v. NLRB, 486 F.2d 837, 847 (8th Cir. 1973) (“Neither the Bourd nor the courts should sit as arbiters of the permissible econoraic weapons available to the parties in a labor dispute”) ; NLRB v. Dalton Brick & Tile Corp., 301 F.2d 886, 895 (5th Cir. 1962). 16 In Mackay Radio, the Supreme Court held that it was not an unfair labor practice for the employer to replace his striking em- 14a conclusion precludes the necessity of considering the other issues raised by the parties,” particularly the ques- ployees with other employees in an effort to carry on his usual business and neither was the employer bound to later discharge the more-recently-hired employees in order to reinstate the strikers. However, the employer was found to have committed an unfair labor practice in violation of §8 of the National Labor Relations Act when he discriminated against certain of the strikers by refusing to rehire them for the sole reason that they had been active in the union. 17 The Administrative Law Judge and the Board in the instant case determined that the employees were not engaged in an in-plant strike or concerted action sufficient to justify the Company’s perma- nently replacing them without notice after a lawful lockout and bar- gaining impasse; that such action tilted the scales out of balance with respect to bargaining power; and that such action also rendered more than a slight adverse effect upon the employees’ protected rights, as compared with the Company’s legitimate business purpose and its lockout bargaining leverage. The Administrative Law Judge further found, and the Board agreed, that the Company’s action was so inherently discriminatory and destructive of the employees’ rights that such action constituted a per se violation of Section 8(a)(1) and (3) of the Act. It was further held that the hiring of permanent replacements in effect constituted a withdrawal of recognition of the employees’ elected bargaining representative and was indicative of bad faith bargaining or refusing to bargain on the part of the Company, all in violation of Section 8 (a) (5) of the Act. In passing we would like to note that when certain conduct by an employer is found to be “inherently destructive” of employees’ rights, the conduct is deemed to be a per se violation and it is un- necessary to examine the employer’s intent behind that conduct in order for the employer to be guilty of having violated the Act. When the employer’s conduct is not inherently destructive but rather has only a comparatively slight impact or slight adverse effect on employees’ rights, then intent becomes an important issue. If there is subjective evidence of anti-union motivation, then the em- ployer has committed a violation. In the absence of anti-union motivation, a balancing test is done to determine whether the em- ployer’s legitimate business reasons outweigh the effect on the employees’ protected statutory rights. NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 380, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967); NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967); NLRB v. Brown, 380 U.S. 278, 287, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965). Because the Board and the Administra- 15a tion of whether an employer may permanently replace locked out employees after bargaining impasse.” tive Law Judge held the conduct of the employer in the presen to be a per se violation, there was no need to go any further. But as long as they attempted to perform the balancing test, we observe the instruction of judicial precedent that neither the Board nor the courts are permitted to choose the weapons or balance the bargaining power of the parties beyond that delineated by Congress in the National Labor Relations Act and other federal and state labor law. See n. 15 infra. As noted in the text, however, due to our disposition of the case before us, we need not reach these issues. In American Ship Bldg. v. Labor Board, 383 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965), the Supreme Court held that an em- ployer does not commit an unfair labor practice under the Act when, after an impasse in negotiations has been reached, he temporarily shuts down his plant and lays off his employees for the sole purpose of applying economic pressure in support of his bargaining posi- tion. However, in a footnote, the Court expressly reserved ruling as to the consequences that would follow if an employer replaced his oe with permanent replacements or temporary help. Id. at n. 8. This Court in National Labor Relations Board v. Dalton Brick and Tile Corp., 301 F.2d 456 (5th Cir. 1962), upheld the use of a lockout for legitimate bargaining purposes when not accompanied by any anti-union animus. The Eighth Circuit went one step further by holding that an employer’s conduct in hiring temporary replacements during a law- ful lockout was not “inherently destructive” of employees’ rights and, balanced on the facts presented in that case, was not a violation of the Act. Inter-Collegiate Press v. NLRB, 486 F.2d 837 (8th Cir. 1973), cert. denied, Bookbinders Local No. 60 v. NLRB, 416 U.S. 938, 94 S.Ct. 1939, 40 L.Ed.2d 288. This approach was adopted by the Administrative Law Judge in the instant case in reference to the hiring of temporary employees after the lockout, with no party challenging it. One year ago in Lodge 76, Intern’l Assoc. of Machinists 1d Aerospace Workers, AFL-CIO v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976), the Supreme Court considered federal preemption of state regulation of a group of employees’ concerted refusal to work overtime while a new contract was being negotiated. After holding that the state was preempted from regulating such conduct (although such conduct was not expressly protected or prohibited by the Act), the Supreme Court stated: 16a Johns-Manville’s petition to set aside the order of the National Labor Relations Board is hereby granted and the Board’s cross-petition for enforcement of said order is hereby denied. WISDOM, Circuit Judge, dissenting: I must respectfully dissent. The Court today infers that an in-plant strike occurred at the Johns-Manville paper plant in New Orleans despite contrary factual conclusions by the administrative law judge and the National Labor Relations Board. As I Moreover, even were the activity presented in the instant case “protected” activity within the meaning of §7, economic weapons were available to counter the union’s refusal to work overtime, e.g., a lockout, American Ship Building Co. v. NLRB, 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855, and the hiring of permanent replacements under NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381 (1938). [footnote omitted]. 96 S.Ct. at 2559. Although we adhere carefully to the words of the Supreme Court we would not say at this time that the above statement clearly indicates whether the hiring of permanent replacements in the absence of a strike (as in Mackay, supra, n. 16) would be a violation of the Act. 1 The administrative law judge found: Consequently, based upon the foregoing credible evidence, legal authority, and reasons, while I conclude and find such evidence sufficient to legally justify the respondent’s lockout of its employees to impose economic pressure upon them in an effort to advance its bargaining position, on the one hand, and to protect its legitimate and substantial business operations from frequent disruptive operations on the other, I nevertheless do not find such evidence sufficient to support a conclusion and finding that respondent’s employees were engaged in an in- plant “strike,” so as to enable it to replace or discharge its entire complement of production employees. In view of the fact that such disruptive acts could have been performed by any one employee, acting independently and not on behalf of any other employee or the Union; that the evidence 17a read the record, substantial evidence does support the Board’s conclusion that the company violated sections 8 (a) (1) and 8(a)(3) of the National Labor Relations Act. Here, the company could not identify a single worker who participated in the alleged strike and could not even determine with reasonable definiteness when the strike occurred. With deference, I submit that the Court’s holding is both factually and legally erroneous. Because of its finding that there was an in-plant strike, the majority did not reach the difficult question whether a company may permanently replace locked-out workers. I would reach this question and hold that the replacement of these workers without notification violated sections 8 (a) (1) and 8(a) (3) of the Act. of record fails to show that respondent conducted any in-plant investigation in an effort to ascertain who was responsible for such disruptive activities; that the respondent did not intro- duce any evidence which identified any employee who was even alleged to be responsible for such activities, I am thereby persuaded that the respondent did not have reasonable and sufficient objective considerations upon which to conclude that any or all of its employees were engaged in improper and un- lawful conduct or concerted activity, so as to justify its replace- ment or discharge of all of its production employees, innocent or guilty alike. The Board adopted the findings, conclusions, and recommended order of the administrative law judge. One member of the Board, dissenting, stated: I join my colleagues in finding that respondent violated Section 8(a)(3), (5), and (1) of the Act by permanently re- placing its entire complement of locked-out unit employees. However, contrary to my colleagues, I would find in accord with my dissenting opinions in Ottawa Silica Company, 197 NLRB 449 (1972), and Inter Collegiate Press, Graphic Arts Division- Sargent Welch Scientific Co., 199 NLRB 177 (1972), that Re- spondent violated Section 8(a)(1) and (3) by operating its plant with temporary replacements for its locked-out employees from November 1973 until April 1974, when it discriminatorily replaced the locked-out employees with permanent employees. 18a I. The majority opinion relies* on the factual inference that all or a majority or a substantial minority of the workers at the plant sabotaged production from August through October 1973. The inference is drawn from sev- eral occurrences and, according to the majority, flows from the facts as found by the administrative law judge. First, the Court concludes that an unusual number of paper breaks or tears occurred as the paper was proc- essed in August, September, nd October. Because the increase in breaks was supposedly so great and coincided with negotiations for a new contract, the Court concluded that the workers caused the disruptions. Second, the Court concluded that metal periodically found lodged in production equipment was inserted by the workers. Third, the majority says that the workers disconnected a power switch and cut a cylinder on a paper dryer. The union emphatically denied that its unit employees engaged in disruptive activities in the plant. The facts that the administrative law judge found relating to these occurrences do not support the inference that all or a 2 The conclusory nature of the majority opinion creates an am- biguity in the Court’s holding. The majority declares that an “in- plant strike” occurred because someone or a number of employees must have committed acts causing the production disruptions. The opinion does not reveal, however, whether this “strike” is concerted protected activity or unprotected activity under section 7 of the Act, 29 U.S.C. § 157 (1970). The opinion does not indicate whether the inferred strike is the equivalent of a strike voted by the majority of the members of the union or whether it is the equivalent of con- certed activity by a minority. If the assumed action by the workers amounts to concerted minority action, the opinion does not explain whether the action supports a clearly articulated union position or whether the union has organized or supported the activity. See NLRB v. Shop Rite Foods, Inc., 5 Cir. 1970, 430 F.2d 786. The legality of the assumed worker conduct, as well as the legality of the employer’s response, depends in part on these unanswered questions. 19a majority or even a substantial number of employees par- ticipated in any plant sabotage. Instead, the record pro- vides substantial evidence in support of the Board’s deci- sion that no worker had been sufficiently linked to un- protected conduct to justify his dismissal or replacement. The Paper Breaks. The company and the majority of the Court base their argument that an in-plant strike occurred primarily on the assertion that the workers dis- rupted production by causing paper breaks. Although the majority says that it accepts the factual findings of the Board, its adoption of the company’s version of the facts belies the asserted deference and ignores substan- tial evidence supporting the Board’s findings. For exam- ple, the parties disputed the average number of paper breaks occurring during non-negotiating periods. The company contended that about three breaks occurred each week. Workers, including utility men who would re- thread machines after breaks, testified that as many as twenty breaks occurred each week. After considering all of the testimony, the administrative law judge found that the paper probably broke about eight times in an average week. Yet the majority bases its decisions on the company’s estimate of three a week without demon- strating why the facts do not support the administrative law judge’s finding.“ In cases where company records provide a clear picture of in- dustrial activity, perhaps reliance on company information and dis- regard of testimony by workers would be justified. But here, the majority is not relying on records accumulated in the regular course of business. Instead, data supporting the majority’s contentions come from the personal diary of the plant production manager, hardly an unbiased observer in the dispute. The company fortuitous- ly destroyed its records about the paper breaks even though the impasse continued at the time of destruction. The administrative law judge found: Paper breaks are caused by several unintentional factors as well as by intentional acts; that the frequency of such paper breaks, though somewhat stabilized during nonnegotiating 20a If the administrative law judge’s facts are used, the company experienced less than one additional paper break per shift during August through October 1973. This is not a significant increase and disproves the contention that a substantial number of workers participated in concerted activity. Indeed, as the administrative law judge concluded, the more reasonable inference is that the workers were not responsible for the breaks or that one or two dissidents caused the disruptions. The inference that a substantial number of the work- ers did not create the disruptions is bolstered by the his- tory of mechanical problems that periodically caused in- creases in breaks. The record contains evidence of un- usually frequent breaks in January, May, and July of 1973, long before any negotiations. An employee testified that excessive breaks in January caused the company to change its policy about shutting down machines to remove paper after a break. Before January 1973, management relied on regular cleaning crews to pick-up the waste. But the increase in breaks in early 1973 prompted the company to grant supervisors the discretion to order paper removed from scrap pits. The Board’s findings are also supported by the failure of the company to attempt to identify any individual as periods, was nevertheless erratically unstable on some occasions during the same period; that anyone, or a combination of em- ployees, can intentionally or unintentionally cause paper breaks by improperly adjusting the heat or revolutions of the dryer machines, by varying the paper mixture formula, or by striking the paper with the hand or an object; and that since Manager Weil’s testimony on the frequency of paper breaks was not from official company records, and additionally, was in conflict with the testimony of some of the employees who operate the machines daily, I find the frequency rate of paper breaks during the nonnegotiating periods was about eight (8) per week, in- stead of three (3) per week as respondent contends, or con- siderably more per week as the employee witnesses contend. This figure makes allowance for inaccuracies and bias on the part of witnesses for both parties. — — 5 —— — 21a a saboteur. The majority justifies this failure to identify even one worker who disrupted production by asserting that detection was impossible. Here again, the majority has accepted the company’s story without critical analy- sis. Most importantly, the failure by the company even to attempt to find a worker in an act of sabotage or to identify a saboteur in some way prevents the conclusion that detection was “difficult if not impossible”. It seems to me that if the disruptions were as serious as the com- pany alleged, the facts suggest that detection was prob- able and that the company should have resorted to serious attempts at surveillance. With 107 production employees, management had to supervise only 35 workers on each shift. Supervisors were in the plant; guards could have been added.* Although the majority contends that the expanse of the plant prevented adequate supervision, the facts do not show that the disruptions occurred in all of the buildings. Instead, they occurred in only three.“ If the breaks were as numerous as the majority contends, a tally of them might have revealed a pattern permitting *The employer in NLRB v. Shop Rite Foods, Inc., 5 Cir. 1970, 430 F.2d 786, 787, hired guards to catch suspected saboteurs. When a supervisor eventually caught an employee cutting sacks of flour, the worker was fired for engaging in conduct not protected by the Act. »The majority also accepted the company’s contention that paper breaks were easy to make and therefore undetectable. The adminis- trative law judge recognized the ease with which breaks occurred. The delicate nature of the production process also supports the ad- ministrative law judge’s conclusion that mechanical problems could have caused the breaks as easily as disgruntled workers. That the company checked the machinery in October and found no obvious mechanical problems does not upset this inference. Because the records about the breaks have been destroyed, we cannot assess the accuracy of the mechanical check. In addition, paper breaks in- creased during other non-negotiating periods, and no mechanical causes appeared. If the breaks were as easy to cause and impossible to detect as the company contends, workers engaged in concerted plant sabotage probably would have created more disruptions than actually occurred. 22a further narrowing of the scope of supervision. Because the company destroyed all records about these disruptions (company policy requires records to be kept for one year), it could not now determine whether the breaks usually occurred in the vicinity of particular workers. Nevertheless, the facts provide little support for the con- tention that detection was impossible at the time when the information was available. The reasonable inference is that the company failed to identify any saboteurs be- cause the small increase in breaks did not warrant an investigation.“ Finally, the majority relies on produetion figures to show that the disruptions were widespread during the negotiations. Yet the only figure cited is 13% tons, the production for October 22, when all parties agree that an unusual number of breaks occurred.” The record shows, however, that October 22 was the only day when the company experienced a substantial loss of production. The average output of the plant was 110 tons a day dur- ing non-negotiating periods. In August, September and October 1973, the critical period, production ranged from 104 tons a day to 112 tons a day. Despite these figures, the majority concludes that an in-plant strike occurred at some unspecified time during the period. We are there- fore asked to believe that a substantial number of un- identified employees engaged in concerted industrial sabo- 6 Even though the majority excuses the company’s failure to in- vestigate, the opinion relies in part on the failure of the union to react to the disruptions. The union, however, had less access to the plant and company records than management. I would not con- demn the union for not uncovering the saboteurs, when the company failed even to investigate the sources of the alleged sabotage. On October 22 workers returned to work after the company had locked them out to check machinery. The labor dispute had reached its peak by then; the parties had reached an impasse. If the company seriously expected widespread worker sabotage, it should have expected disruptions on the twenty-second. Yet manage- ment still made no attempt to identify the saboteurs. 23a tage that was easy to accomplish and impossible to detect, and yet that the employees met or exceeded the average output of the plant. It is not surprising that the majority and the company have such a difficult time attempting to establish the date of this strike or the identity of the strikers. As the Board concluded, the facts do not demon- strate that a strike occurred. The Metal. The majority submits that the workers sabotaged the plant by inserting scrap metal into the ma- chinery. Specifically, the opinion states that the workers inserted ball bearings into a grinder shortly after the Oc- tober 3 bargaining session. How the majority determined that workers had placed the metal in the production process is unclear. No direct evidence supports that con- clusion. Even the company, at the October 3 bargaining session, acknowledged the more reasonable inference that small pieces of metal such as ball bearings were probably mixed with the wood chips ground to make paper slurry. After union officers pointed out instances of metal dam- age in August, including the jamming of a defibrator with ball bearings, company officials admitted that the company was not accusing its employees of placing metal in the wood. As of October 3, then, the facts do not sup- port the inference that any worker engaged in an in-plant strike by jamming machinery with metal. During the period after October 3, the evidence connects no individ- ual worker to the metal jams, and the majority fails to specify when the introduction of foreign materials into the production process amounted to a strike. Because the number of jams and the amount of metal was so small, the Board’s conclusion that one or two disgruntled em- — caused the jams finds substantial support in the record. The Power Switch and Damaged Cylinder. The record contains no direct evidence as to the cause of either the disconnecting of a major power switch or the cutting of 24a a wire mesh cylinder on October 2. The majority uses the incidents to supports its theory of an in-plant strike. Both occurrences support the Board’s conclusion that only one or two workers acting independently created several of the disruptions. It takes only one person to throw a switch or to cut a cylinder. If a group had been involved in either incident, the participants probably would have been detected. The majority has therefore failed again to demonstrate that a substantial number of employees sabotaged the plant or otherwise engaged in an in-plant strike. On these facts the Court concludes that “the employees in the instant case went too far“; they struck and may be replaced. Whenever the employees “went”, as a matter of fact the entire workforce did not strike, and there is no evidence that a substantial number of employees struck. The facts prove no more than that one or two or a hand- ful of workers may have created a few production dis- ruptions, most of them occurring on October 22, 1973. The facts do not show who “went too far” or when they went there. Consequently, the facts do not show a strike by anyone. Instead, the record shows that substantial evidence supports the conclusion of the administrative law judge and the National Labor Relations Board that the company identified no workers as actually connected to any misconduct justifying replacement or dismissal.* II. The majority declares that a strike occurred as a matter of law at the Johns-Manville plant. This holding is un- precedented. The Court cites no section of the Act, no s As set out in section II of this opinion, the case law does not support the holding that in-plant concerted activity damaging com- pany property is protected under section 7. Consequently, the ma- jority opinion would appear to justify other disciplinary action by the company, including the firing of all of the workers. 25a decision of a court, no holding of the Board, and no argu- ment of labor policy in support of its conclusion. There is no citation because no supporting case exists. Both law and policy compel the conclusion reached by the Board that action may not be taken against in-plant strikers until the participating workers are identified. The first legal error made by the majority, if I may say so with deference, is its confusion of unprotected em- ployee activity, with protected activity. The Court says that an “in-plant strike” occurred as a matter of law. Par- ticipation by workers in an in-plant strike has consistently been regarded as unprotected concerted activity.’ In this case the sabotage asserted by the company would, if proved, be deemed unprotected because it allegedly inter- fered with the company’s rightful use of its property, damaged the property, and endangered lives.“ When the majority addresses the validity of the permanent replace- ment of the workers, however, it grants its approval with citation only to NLRB v. Mackay Radio & Telegraph Co., 1938, 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381, a case involving an ordinary strike protected by section 7 of the Act. The Court’s reasoning therefore yields the following conclusion: concerted activity outside the protection of the F. g., NLRB v. Fansteel Metallurgical Corp., 1939, 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627 (takeover and damage of employer's property by workers); NLRB v. Clinchfield Coal Corp., 4 Cir. 1944, 145 F.2d 66 (interference with employer’s operation of its mining facilities); Honolulu Rapid Transit, 1954, 110 NLRB 1806 (inter- mittent on-the-job strikes); Elk Lumber Co., 1950, 91 NLRB 333 (slowdown) ; cf. NLRB v. Shop Rite Foods, Inc., 5 Cir. 1970, 430 F.2d 786 (action by a minority of workers in a unionized plant) ; NLRB v. Draper Corp., 4 Cir. 1944, 145 F.2d 199 (action by a minority of workers in a unionized plant). 10 Recently, the Supreme Court suggested that partial strikes may not always be deemed unprotected under section 7. Lodge 76, Int'l Ass'n of Mach. & Aero. Wkrs. v. Wisconsin Employment Relations Comm’n, 1976, 427 U.S. 132, 152 n. 14, 96 S.Ct. 2548, 49 L.Ed.2d 396. But the Court also approved cases such as Fansteel in which activity interfering with the company’s use of its property or dam- aging the property was denied protection. 26a Act by unidentified workers permits the inference that the entire workforce engaged in protected concerted ac- tivity. I cannot buy this. The lack of logic or policy in this inference explains why the proposition is unique in America labor law. As its second legal error, the Court approves company action against all of its production employees even though no individual has been specifically connected with any con- certed activity, protected or unprotected. Mackay ap- proved the permanent replacement only of workers who were identified as striking. 304 U.S. at 337, 345, 58 S.Ct. 904. Similarly, companies have been permitted to respond unilaterally to unprotected activity only when the participating workers bave been identified. In Stewart Die Casting Corp. v. NLRB, 7 Cir. 1940, 114 F.2d 849, cert. denied, 1941, 312 U.S 680, 61 S.Ct. 449, 85 L.Ed. 1119, for example, a sit-down strike by unidentified em- ployees preceded a general strike by the entire workforce. The company argued that the employment relationship with all the workers had terminated, not just the re- lationship with those who had participated in the sit-down strike. The Court of Appeals rejected the contention: In this connection, it is also pertinent to observe that the record, with the exception of twelve or four- teen Board witnesses who admitted they participated in the sit-down strike, is silent as to who were the participants. In fact, it is shown with no certainty as to the number who participated. Petitioner’s presi- dent estimated the number at 75, the Board found “about 100” and some of the witnesses placed the number as high as 150. . Certainly all of the employees should not be deprived of the benefits of the Act because certain undisclosed ones forfeited their rights. Id. at 856. 27a. The reasoning of Stewart Die Casting is consistent with all other reported cases involving unprotected concerted activity by a minority of employees,“ unprotected sit- down strikes, unprotected slow-down actions, and un- protected displays of violence by workers.“ In no case has 1 F. g. Emporium Capwell Co. v. Western Addition Community Org., 1975, 420 U.S. 50, 95 S.Ct. 977, 43 L.Ed.2d 12 (Strikers were identified as they picketed the plant); NLRB v. Shop Rite Foods, Inc., 5 Cir. 1970, 430 F.2d 786 (Strikers were identified when they failed to time-in for work); NLRB v. Sunbeam Lighting Co., 7 Cir. 1963, 318 F.2d 661 (Only the 50 workers who walked out in a wild- cat strike were discharged.) ; C. G. Conn, Ltd. v. NLRB, 7 Cir. 1939, 108 F.2d 390 (Workers were identified as they walked out.); Terry Poultry Co., 1954, 109 NLRB 1097 (Only two workers who left the assembly line to present a grievance to management were dis- charged.) 12 FE. g., NLRB v. Fansteel Metallurgical Corp., 1939, 306 U.S. 240, 59 S. Ct. 490, 83 L. Ed. 627 (The company fired only the workers who participated in the violent sit-down strike.); NLRB v. Clinch- field Coal Corp., 4 Cir. 1944, 145 F.2d 66 (The company fired only the workers who had blocked the entrance to the mine with a coal car.); Stewart Die Casting Corp. v. NLRB, 7 Cir. 1940, 114 F.2d 849 (The company could not discipline the entire workforce for a sit-down strike launched by an undetermined number of the workers). 18 F. g., Harnischfeger Corp. v. NLRB, 7 Cir. 1953, 207 F.2d 575, (The company discharged only the three men who led a partial, intermittent work stoppage.); Honolulu Rapid Transit Co., 1954, 110 NLRB 1806 (The company discharged only those drivers who did not report for work during intermittent work stoppages.) ; Elk Lumber Co., 1950, 91 NLRB 333 (The company fired only those workers who slowed the pace of their work and discussed the slow- down with management.). 14 F. g., Seminole Asphalt Refining, Inc. v. NLRB, 5 Cir. 1974, 497 F.2d 247 (The Court refused to enforce a Board order of rein- statement only after concluding that the three workers had actually participated in violence); W. J. Ruscoe v. NLRB, 6 Cir. 1969, 406 F.2d 725 (The identification of workers who participated in violence included photographs of the activity). Oneita Knitting Mills, Inc. v. NLRB, 4 Cir. 1967, 375 F.2d 385 (The company could not alter the seniority of returning strikers but could fire a worker who drove a car from which eggs were thrown. The Court required reinstate- ment of a worker who was not sufficiently connected by the facts to the egg throwing.) ; NLRB v. Clearfield Cheese Co., 3 Cir. 1954, a company been permitted to discipline, replace, or fire workers who did not participate in the activity. The picket line violence cases are particularly instructive be- cause the courts have required clear identification of the offending workers before action may be taken against them. In NLRB v. Mt. Clemens Pottery Co., 6 Cir. 1945, 147 F.2d 262, for example, the company argued that it had no duty to reinstate any unfair labor practice striker because violence had erupted during the strike. The Court of Appeals concluded that only two workers had com- mitted acts that would justify denying them reinstate- ment. As for the other workers, “the violence of these two employees, so clearly established by their convictions, is not, however, to be imputed to other union members in the absence of proof that identifies others as participating in such violence.” Id. at 267. Yet the violence and sabo- tage that the Johns-Manville management says occurred at its plant are imputed to the entire workforce with no evidence identifying any participant. The Court’s hold- ing disregards thirty years of contrary precedent sup- porting the Board’s decision. 213 F.2d 70 (Reinstatement after an unfair labor practice strike was denied only to 21 employees who were clearly identified as par- ticipants in picket line misconduct) ; NLRB v. Mt. Clemens Pottery Co., 6 Cir. 1945, 147 F.2d 262 (The Court refused to impute the violence of two employees to the rest of the workforce.) ; Republic Steel Corp. v. NLRB, 3 Cir. 1939, 107 F.2d 472, modified on other grounds, 1940, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6 (Workers denied reinstatement were identified by criminal convictions.) ; Alcon Cable West, 1974, 214 NLRB 236 (One worker may be terminated because the facts sufficiently connected him to violence; another worker, who participated only in the isolated incident could not be termi- nated.) ; Jai Lai Cafe, 1973, 200 NLRT 1167 (The two employees terminated had engaged in mass picketing, had placed nails in the road to puncture tires, and verbally had abused customers and other workers.); Berkshire Knitting Mills, 1943, 46 NLRB 955 (When the company could not prove that several employees had engaged in misconduct, the Board prevented their discharge. ). The implication of the in-plant strike also violates the labor policy embodied in section 7 of the Act in that it inhibits future unionization and collective bargaining. Workers have the right to bargain collectively, to union- ize, and to refuse unionization without coercion. The origin of these rights is the policy judgment by Congress that the settlement of labor disputes by collective bar- gaining will diminish industrial strife. The proper role of the Board and the courts, therefore, is to protect the process of collective bargaining and the freedom of workers to decide whether to unionize. American Ship Building Co. v. NLRB, 1965, 380 U.S. 300, 308-09, 85 S.Ct. 955, 13 L.Ed.2d 855; Inter Collegiate Press v. NLRB, 8 Cir. 1973, 486 F.2d 837, cert. denied sub nom. Bookbinders Local No. 60 v. NLRB, 1974, 416 U.S. 938, 94 S.Ct. 1939, 40 L.Ed.2d 288; Note, 85 Harv.L.Rev. 680 (1972). No one can question the majority’s statement that the protection of these basic policies must be distinguished from attempts to balance the economic strengths of parties in collective bargaining. Economic coercion may be used to achieve particular terms and conditions of employment. International Association of Machinists and Aerospace Workers v. Wisconsin Employment Relations Commission, 1976, 427 U.S. 132, 143-44, 96 S.Ct. 2548, 49 L.Ed.2d 396. But the coercion may not be directed toward in- hibiting the exercise of section 7 rights. 15 29 U.S.C. § 157 (1970) states: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title. 30a In this case the Court has given employers a lethal new tool to combat future unionization and to avoid the process of collective bargaining. By permitting the em- ployer to imply the existence of a strike without identify- ing any participant and on, what appears to me, to be a flimsy factual basis, the Court in effect denies workers their livelihoods because they joined a union and en- gaged in collective bargaining. The message will not be lost on workers or management. When a worker joins a union and attempts to bargain about the terms of his employment, he may now lose his job if at his plant any disruptions of production occur which may be laid at the door of a few malcontents or overreacting union workers. Even though he produces a normal output and puts no economic pressure on the company, management may re- place him with impunity; the Court of Appeals will in- fer that he created the disruptions, because the disrup- tions coincided with his union’s negotiations for a new contract. Conversely, when a company tires of its union- ized workforce, it can highlight a few production disrup- tions during contract negotiations, infer an in-plant strike, and replace its workers with non-unionized employees. As a result, workers will be encouraged to avoid union- ization and the process of collective bargaining. Com- panies will be encouraged to thwart bargaining and unionization by visiting the sins of the few on the many, causing unemployment on those who seek to exercise their section 7 rights. By declining to infer the existence of an in-plant strike, the Board refused to countenance damage to these basic policies. The majority justifies its reversal of the Board in part because the Supreme Court has instructed courts not to rubber stamp “administrative decisions that they deem inconsistent with a statutory mandate or that frus- trate the congressional policy underlying a statute”, quot- ing NLRB v. Brown, 1965, 380 U.S. 278, 291, 85 S.Ct. 31a 980, 988, 13 L. Ed. 2d 839. In the case before us, how- ever, the majority rather than the Board frustrates con- gressional policy and in the process ignores overwhelm- ing precedent in support of the Board’s decision. I would affirm the holding that no in-plant strike occurred, as a matter of law and fact, and that no worker was suffi- ciently linked to unprotected conduct to justify his dis- missal or replacement.“ III. Because I would sustain the Board’s decision on whether a strike occurred, I must address the more difficult legal question raised by the parties: may an employer who has locked out his nonstriking workers permanently re- place them without notification? The Supreme Court de- clined to reach the question in American Ship Building Co. v. NLRB, 1965, 380 U.S. 300, 308, n. 8, 85 S.Ct. 955, 13 L.Ed.2d 855. This Court has never faced the issue. 1% The company also submits that the workers began a regular strike at the same time as the lockout. The members of the unit approved a strike and received authorization for it from the Inter- national. But this is a common negotiating technique and does not justify the inference that a strike actually occurred. The company also relies on a statement made by the International representative to company officials: [Y]Jou let us go before and we will go again . We can hold out to any amount of pressure you can give us .... [Wle will not settle for any less than the other plants. Because this statement refers to the lockout that had just ended and responds to the company’s announcement on October 31 of another lockout, the sentences logically refer to the union’s ability to with- stand a lockout, not to the imminence of a strike. “Holding out“ to company pressure in this context means refusing to capitulate to the company’s contract demands despite the economic pressure. Finally, the receipt of union benefits would show a strike only if strikers alone could receive the benefits. The company offered no evidence to prove that locked-out workers could not receive such benefits. In short, the record does not support the assertion that the employees mounted an economic strike. 32a A. The administrative law judge concluded that permanent replacement of locked-out workers amounted to a violation of sections 8 (a) (1), “ 8 (a) (3), “ and 8 (a) (5) * of the Act. With regard to the 8 (a) (1) and 8 (a) (3) violations, the administrative law judge held both that the employer's business purpose could not outweigh the damage inflicted by the replacement on worker rights and that NLRB v. Erie Resistor Corp., 1963, 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308, required finding the replacement to be a per se violation of the sections. The Board agreed with the administrative law judge that the hiring of permanent replacements without notifying the union “rendered more than a slight adverse effect upon em- ployees’ protected rights, as compared with Respondent’s legitimate business purpose”. Neither the Board’s nor the administrative law judge’s opinion reveals the basis of the comparison of the employer and employee interests. The company attacks the order on two levels. First, it argues that permanent replacement of locked-out 1729 U.S.C. § 158 (a) states in part: It shall be an unfair labor practice for an employer— (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7... . 18 29 U.S.C. § 158(a) states in part: It shall be an unfair labor practice for an employer— (3) by discrimination in regard to hire or tenure of employ- ment or any term of condition of employment to encourage or discourage membership in any labor organization 19 29 U.S.C. § 158 (a) states in part: It shall be an unfair labor practice for an employer— (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a). workers should not constitute a per se violation of the Act. It bases this argument on NLRB v. Mackay Radio & Telephone Co., 1938, 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381, which held that an employer may continue to operate his business during a strike with permanent replacements. The employer also contends that the re- placement of these workers did not inherently destroy their rights because they retained certain privileges guaranteed by the Supreme Court.” Second, the com- pany justifies the replacement of these workers by balanc- ing its business interests against the rights and interests of the employees. On the company’s side of the scales, Johns-Manville places the interest in the survival of the plant as a profitable component of the enterprise. Because of the lockout, the company lost money and faced a loss of permanent customers. The temporary replacements 20 The replaced worker is subject to recall in the event of a vacancy, Laidlaw Corp., 1968, 171 N.L.R.B. 1366, enforced, 7 Cir. 1969, 414 F.2d 99, cert. denied, 1970, 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 100. He may vote in any representation election con- ducted within twelve months after commencement of a strike. Wahl Clipper Corp., 1972, 195 N.L.R.B. 634. The union may continue to bargain unless the company has sufficient evidence to challenge its representative status. C. H. Guenther & Son, Inc. v. NLRB, 5 Cir. 1970, 427 F.2d 983, cert. denied, 400 U.S. 942, 91 S.Ct. 240, 27 L.Ed.2d 246. Although these cases provide the replaced worker some protection, they do not lead to the conclusion that his rights and interests have not been damaged. The protections listed above are of only minimal value to the locked-out Johns-Manville workers. First, in the sluggish economy of 1974 few vacancies occurred. Second, because the company permanently replaced the workers five and a half months after the lockout, the workers’ right to vote in representation elec- tions probably extended orly six and a half months after the replace- ment. The company needed only to wait a short time to gain a rep- resentation election in which the electorate would have been com- posed exclusively of replacements. Third, the union’s ability to rep- resent the bargaining unit was substantially undermined by the replacement of the entire workforce. In comparison to the rights that a fully employed worker enjoys, then, the rights granted to a locked-out and permanently replaced worker are inferior. 34a employed immediately after the lockout began had not performed satisfactorily. The management felt that it could not have reactivated the locked-out workers without a contract because of the production disruptions that had occurred five and a half months previously. It also de- sired to maintain its bargaining position. To avoid fur- ther losses without capitulating to the union, then, it ar- gues that its only alternative was to employ the perma- nent replacements. On the workers’ side of the scale, the company places the right to continue the bargaining unit and the right to bargain through that unit. After asserting that it did not intentionally damage these two rights, the company says that detriment by permanent replacement after the lockout was no greater than damage by replacement after the strike in Mackay. B. I respond to these arguments by analyzing the interests of the parties and the motive of the company consistent with the facts found by the administrative law judge. I would adhere to the guidelines established by NLRB v. Great Dane Trailers, Inc., 1967, 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027, for assessing alleged (8) (1) and 8(a) (3) violations." Great Dane analyzed an alleged in- fraction of section 8 (a) (3) by a company’s refusing to pay accrued vacation benefits to strikers while paying the benefits to replacements, nonstrikers, and returning strikers. The Court identified three elements of an 8(a) (3) unfair labor practice: discrimination against workers exercising their rights, resulting discouragement of union membership, and anti-union motivation on the part of the company. Although the Court easily found discrimination and discouragement of membership on the facts of the 21 Because of my resolution of the 8(a)(1) and 8(a)(3) issues, I would not reach the 8(a) (5) question. case, it considered the motive of the company at length. From a series of earlier decisions * the Court established several guiding principles for assessing the motive of employers. First, conduct may be deemed “inherently destructive” of employee rights when the effect on employee interests is so severe that the conduct carries its own indicia of antiunion animus. Id. at 33, 87 S.Ct. 1792. Although the Court has never precisely defined “inherently destruc- tive“, I would say that the term denotes conduct that thwarts the basic policies of the Act. For example, action that frustrates the process of collective bargaining or the future of unionization at a plant thwarts congressional goals embodied in sections 7 and 8. Such behavior might lead to the finding of an unfair labor practice, depending on the justifications offered by the company for the be- havior. On the other hand, conduct merely influencing workers’ ability to maintain their bargaining demands does not reach the viability of the process of collective bargaining and should not be labeled “inherently destruc- tive”. American Ship Building Co. v. NLRB, 1965, 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855, Note, 85 Harv. L.Rev. 680, 683 (1972). When the behavior of the company begins to frustrate the basic policies of the Act and by its nature demon- strates anti-union animus, direct proof of motive is not required. The Board may infer the illegal intent and find an unfair labor practice even if a business justifica- tion exists for the company’s action. Id. at 34, 87 S.Ct. 1792. Whenever the infringement of employee interests 22 The Court relied on NLRB v. Brown, 1965, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839; American Ship Building Co. v. NLRB, 1965, 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855; and NLRB v. Erie Resistor Corp., 1963, 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308. 28 This method of assessing intent developed in Erie Resistor. It merely applies the well-established principles that a person intends is more than “comparatively slight” and the company asserts a business justification, the Board must balance the respective interests in order to draw a correct in- ference about the real motive of the employer. NLRB v. Great Dane Trailers, Inc., 388 U.S. at 33, 87 S.Ct. 1792; NLRB v. Brown, 1965, 380 U.S. 278, 286, 85 S.Ct. 980, 13 L.Ed.2d 839; NLRB v. Erie Resistor, 1963, 373 U.S. 221, 228-29, 83 S.Ct. 1139, 10 L.Ed.2d 308. Second, if the damage to the employee rights is only “comparatively slight“ and the company offers a busi- ness justification for its conduct, the activity will be considered prima facie lawful. An unfair labor practice may then be found only upon proof of actual anti-union motive. NLRB v. Great Dane Trailers, Inc., 388 U.S. at 34, 87 S.Ct. 1792. Third, whenever any damage, however slight, occurs to the rights of employees, the burden shifts to the em- ployer to come forward with a legitimate business jus- tification for his conduct. The burden of going forward with this evidence shifts because the employer has greater access to proof about his motives. Id. at 34, 87 S.Ct. 1792. These principles also apply to alleged violations of section 8 (a) (1). See NLRB v. Fleetwood Trailers Co., 1967, 389 U.S. 375, 378, 88 S.Ct. 543, 19 L.Ed.2d 614; Inter- Collegiate Press v. NLRB, 8 Cir. 1973, 486 F. 2d 837, cert. denied sub nom., Bookbinders Local No. 60 v. NLRB, 1974, 416 U.S. 938, 94 S.Ct. 1939, 40 L.Ed.2d 288. The basic elements of an 8 (a) (1) unfair labor prac- tice therefore are a) employer action that effectively interferes with, restrains, or coerces employees in the exercise of their section 7 rights and b) intent by the employer to interfere with, restrain, or coerce the right of employees to organize. the natural and probable consequences of his conduct, 373 U.S. at 227, 83 S.Ct. 1139. 37a C. Application of these legal principles to the instant facts reveals an unfair labor practice under section 8 (a) (1) of the Act. To begin with, Johns-Manville effectively restrained and coerced the employees who attempted to exercise the right to unionize and the right to bargain collectively at the New Orleans plant. The workers lost their jobs and incomes because they bargained until they reached an impasse. The lesson is clear. These workers and their replacements will be less likely to unionize and bargain in the future because they experienced the eco- nomic deprivation imposed by the company. Consequently, the first element of an 8(a)(1) unfair labor practice is met. Restraint or coercion alone is not sufficient, however, to establish a violation of the Act. All economic pressure by employers coerces or restrains workers, and most of it influences the future exercise of section 7 rights by employees. The pressure is illegal only if it results from an improper, anti-union motive. In this case, an analysis of the company’s motive justifies the Board’s conclusion that an 8 (a) (1) violation occurred. First, Great Dane requires. resolution of the question whether the coercion and restraint of the worker’s rights were more than “comparatively slight”. If the effects were only slight, then Great Dane would prohibit the inference of an impermissible motive on the facts of this case. If the effects were more than slight, as the admin- istrative law judge and the Board concluded, then the Board would be able to infer the illegal motivation if the company could not justify its conduct on other grounds. I agree with the Board’s conclusion, because the company’s conduct will have a serious impact on the future of unionization and collective bargaining at the plant, as demonstrated by comparison of these facts with analogous cases. For example, NLRB v. Erie Resistor 38a Corp., 1963, 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308, found an unfair labor practice when the company grant- ed twenty years of superseniority to permanent replace- ments. This action imposed a substantial discrimination on those exercising their rights because it a) affected all pre-strike workers without regard to whether they had engaged in improper conduct or economic warfare against the company, b) imposed an obvious detriment on those exercising their section 7 rights and an obvious benefit on the replacements, e) dealt a crippling blow to the exercise of the section 7 rights in the future, and d) created an unnatural cleavage in the bargaining unit that would have lasted beyond the duration of the strike. Id. at 230, 83 S.Ct. 1139. Similarly, consider the lockout and permanent replace- ment of the Johns-Manville production workers. (a) All of the workers were replaced, not just those who allegedly engaged in illegal economic warfare by creating produc- tion disruptions. (b) The workers who exercised their section 7 rights by unionizing and bargaining collectively lost their jobs, for a substantial period and certainly beyond the duration of the labor dispute. This was a detriment not imposed on those who did not exercise their section 7 rights; the replacements were given jobs. (c) The replacements crippled the future exercise of worker rights. The bargaining unit was entirely replaced with workers who had not unionized or bargained. The eco- nomic devastation to those who did unionize and bargain would have a chilling effect upon the new workers. Fur- thermore, in a depressed economy few of the new em- ployees left their jobs within a year of the lockout. Few of the locked-out employees were reinstated. Consequent- ly, the chance for the locked-out workers to exercise sec- tion 7 rights was remote.“ (d) To the extent that any 24 See note 20 supra for a comparison of the rights of a replaced worker with those of a fully employed worker. of the workers were reinstated, the company created a permanent cleavage in the bargaining unit between those who exercised their section 7 rights and those who helped management crush the exercise of those rights. This cleavage would have inhibited future unionization and collective bargaining in the plant. In short, the effect of Johns-Manville’s permanent replacement of the locked-out workers was just as serious as the effect of the company action in Erie Resistor. The Board therefore correctly found that worker rights were more than slightly im- paired. This conclusion is buttressed by a comparison of the facts of this case with cases involving company action having only slight impact on worker rights. In NLRB v. Brown, 1965, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839, for example, the Court permitted members of a multiemployer bargaining group to lock-out and tempo- rarily replace all of its workers when the workers at only one store launched a strike. The lock-out and tem- porary replacement of workers had only a slight effect on worker rights. (a) The coercion was only temporary; it did not threaten permanent employment. (b) The ac- tion did not harm future unionization, because the effects of the action did not extend beyond the end of the dispute and because the company retained its character as a union shop. (c) The members could have ended the detri- ment to their interests by agreeing on a new contract that was better than their previous contract. Jd. at 288, 85 S.Ct. 980. None of these facts existed in the Johns-Manville dis- pute. (a) The coercion was not temporary. The threat of permanent loss of employment at the plant was sub- stantial because the workers had to be carried on the hiring list for only six and a half months.* (b) The 25 See note 20 supra. 40a future of unionization and collective bargaining in the plant was placed in substantial doubt. The company hired an entirely new group of workers who realized that they had their jobs only because the company re- placed the unionized workforce. (c) The Johns-Manville workers could not have ended the effect of the employer’s action by agreeing to the company’s terms. Indeed, the workers never had the opportunity to avoid the perma- nent replacement by modifying their bargaining position; the company replaced them without notification. This is an important factor in assessing the company’s motive. If management had notified the union that it would re- place the workers unless a settlement could be reached, the motive would logically have been directed toward settlement of the dispute. By proceeding without notifi- cation the company made clear its motive to rid itself of these unionized workers. Once the replacement oc- curred, the employees could no longer have ended their economic distress by settling the dispute. They could only have gained access to a hiring waiting list during a sluggish period of the economy. The effect of company action on the rights of these workers therefore does not resemble the effect identified by the Supreme Court in Brown as “slight”. In another case in which a court found company ac- tion to affect worker rights only slightly, the company also replaced the workers temporarily. The Eighth Cir- cuit analyzed the facts of Inter-Collegiate Press v. NLRB, 8 Cir. 1973, 486 F.2d 837, according to Brown. After exploring the factors we have referred to, the Court of Appeals added an element further suggesting that the company acted without anti-union animus: Inter-Collegi- ate Press retained the union’s security provisions during the dispute. In this case, on the contrary, the company cancelled the security provisions, which not only distin- guishes these facts from Inter-Collegiate Press but also 4la supports directly the inference that the company acted with anti-union animus. Comparison of the Johns-Manville facts with the cases in which courts have considered the extent of damage to worker interests and rights supports the Board’s decision that the effect on worker interests here was more than comparatively slight. By permanently replacing the en- tire workforce without notification, Johns-Manville in- flicted substantial and longlasting damage on worker interests and rights. Because this destruction is the obvi- ous and natural consequence of the company’s conduct, the inference arises that the company intended the ef- fects.” Second, Great Dane requires a two-fold examination of the business justifications asserted by the company to ex- plain its motives. The legitimacy of the proposed justi- fications must be established. In NLRB v. Fleetwood Trailer Co., 1967, 389 U.S. 375, 379-80, 88 S.Ct. 543, 19 L.Ed.2d 614, for example, the Court rejected considera- tion of an efficiency justification because the company, as a matter of fact, had instituted no changes in its produc- tion process. The legitimate justifications must then be weighed against the damage to worker interests to reveal the real motive of the employer. NLRB v. Great Dane Trailers, Inc., 388 U.S. at 33, 87 S.Ct. 1792. The primary justification submitted by Johns-Manville is invalid, as a matter of fact. The management says 26 The employer contends that the workers’ rights were not seriously affected by arguing that the Supreme Court permitted the permanent replacement of striking workers in Mackay. The argument is unpersuasive. Mackay did not consider the effect of the replacement on the workers’ rights; it did not attempt to infer an illegal intent on the part of the employer. The case pre-dates the legal tests established in Brown v. Erie Resistor and Great Dane by more than 20 years. Consequently, it offers little guidance as to whether the Johns-Manville facts demonstrate more than a single impairment of worker interests. 42a that it hired permanent replacements rather than ending the lock-out because the workers continued to threaten production disruptions. This phantom fear is based on speculation. As emphasized earlier, no proof exists that more than one, two, three or, at most, a handful of dis- gruntled employees caused disruptions during August through October 1973. These mavericks may have found other employment during the lock-out. The disruptions therefore might have ceased upon reinstatement of workers available in April. Fear of a recurrence of the disruptions of October 22 is also unreasonable. The workers had been laid off for nearly six months, a sub- stantial cooling-off period. The economic hardship im- posed during that time might have made a steady pay check and a job more appealing to the employees than the unemployment compensation and convulsive disruption. Furthermore, the workers neared the end of their six- month eligibility for unemployment benefits. The prospect of the loss of that source of income could have provided additional incentive for the workers to return peaceably to work while the negotiations for a new contract con- tinued. But they never received the opportunity to return because the company permanently replaced them. Without notifying the union of the need for the experienced workers or of the prospect for permanent replacement, the company has no legitimate factual basis to declare that sabotage would have recurred with the return of the em- ployees. The more reasonable inference is that production of about 110 tons a day of paper would have resumed. Two additional justifications asserted by the company do have sufficient legitimacy to enter the balance required by Great Dane. First, the company had an interest in maintaining its bargaining posture and in pressuring workers to accept its position. Second, it had an interest in maintaining the profitability of its enterprise by con- tinuing production despite the economic warfare with 43a the union. According to the company, both ef these in- terests could be satisfied in April 1974 only by permanent replacement of the workforce. According to the company, four courses of action were open to the company when the impasse continued in April. It could have continued its lock-out without replacement of any kind, which would not have satisfied the first interest. It could have contin- ued the lock-out with temporary replacements, which also would not have satisfied the first interest.“ It could have reinstated the locked-out workers and continued bargain- ing, which would have satisfied the first but not the second interest. Thus, management concluded that only by permanently replacing the workers could the company maintain its profits while continuing to pressure the union to capitulate. The company omits a fifth course and thereby under- mines the asserted innocence of its motives in April 1974. The company could have notified the union that it was contemplating permanent replacement of the workers to reverse the financial losses incurred while using tempor- ary replacements. Notification would have demonstrated a true interest in pressuring the union to accept the com- pany proposal because it would have given the union leadership a chance to avoid the damage that permanent replacement threatened to employee interests. By taking this action, the company could have satisfied both of its legitimate interests more effectively than by using the permanent replacements. Regarding profitability, the pre- vious workforce could have manufactured the paper more efficiently than a new crew that needed training and orientation. Regarding maintenance of the bargaining position, a settlement induced by the notification would * Operation of the plant with temporary replacements proved unprofitable. The company lost $300,000 a month in pre-tax profits from October 1973 through March 1974. Because of r-ljuced out- put from the plant, management had to curtail production at two other installations that relied on the New Orleans paper. 44a have satisfied this concern completely whereas the perman- ent replacement alternative left the company with an im- passe and a new, untested crew of workers that might or might not have performed satisfactorily. If they had not, the company would still have faced the impasse. Man- agement’s disregard for the best approach to protect its interests therefore casts doubt on whether these con- cerns actually motivated company action. In balancing the various effects to reveal the motive of Johns-Manville, this failure diminishes the weight assigned to the two interests asserted by the company. Finally, Great Dane requires a comparison of the as- serted business justifications and the damage inflicted on worker rights and interests. On the facts of this case the damage to worker rights dominates the alleged justi- fications. The damage flows naturally from the permanent replacement of the workers. The inference therefore arises that the company intended the consequences. Johns- Manville could have rebutted this inference by showing that business justifications motivated its conduct and that the damage to worker rights was therefore an unin- tended effect. The company has not met this burden, how- ever because it failed to pursue the avenue that would have best protected its profits and supported its bargain- ing position. Instead, it adopted an approach that pro- vided less protection for its interests and more damage to the worker’s rights. I can only conclude that such con- duct was motivated by anti-union animus.** The com- 28 This conclusion is reached without an attempt to balance the economic weapons available to the parties. The company argues at length that the NLRB issued the order in this case only because it found the company’s economic warfare to be “too effective”. This argument legally misses the point. The balancing mandated by Erie Resistor and Great Dane is not pursued for its own sake. It is merely a method of determining whether the company acted with an illegal motive. If the company’s behavior and the results of that behavior effectively promote the company’s bargaining position and do not inhibit the future exercise of section 7 rights by workers, 45a pany therefore committed an unfair labor practice under section 8 (a) (1) of the Act by permanently replacing its locked-out workers without notification. D. The company also violated section 8(a) (3) of the Act. As pointed out in subsection III-B of this opinion, an 8(a) (3) unfair labor practice includes three elements: (a) discrimination with regard to hiring or tenure of employment, (b) encouragement of union membership, and (c) intent to encourage or discourage worker union- ization. 388 U.S. at 32-33, 87 S.Ct. 1792. Here, the first element is satisfied because Johns-Manville hired the replacements while failing to reinstate the locked-out workers. This is discrimination with regard to hiring. The analysis of the alleged 8(a)(1) violation demon- strated that the discrimination will discourage union membership.“ Both the locked-out workers and the per- manent replacements will be less likely to unionize at the Johns-Manville plant in the future. The replacements have seen the economic deprivation that results from unionization. The replaced workers have no positions at the plant and will probably not be reinstated in the fu- ture. They will therefore have little opportunity to join or to retain union representation for the bargaining unit. The intent element is satisfied by the analysis of the then an illegal motive cannot be inferred. On the other hand if the conduct also tends to coerce or restrain the future exercise of those rights, regardless of its “effectiveness” in promoting the bargaining position of the company, the basis for inferring the impermissible motive exists. Here, the destruction of rights is so significant and the company’s supposed interests are sc ineptly pursued that the company must have intended to thwart future unionization and collective bargaining at its plant. 2° See subsection III-C supra. 46a company’s intent to violate section 8 (a) (1).“ Thus the violation is established and the Board’s order justified. IV. In summary, I would enforce the order of the National Labor Relations Board. As a matter of fact and law, no “in-plant” strike occurred to justify the replacement of the workers. The replacement of them without notification and in the absence of a strike violates sect [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0659%3A1. Public record. Not legal advice.