                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-23-1994

NLRB v. Greensburg Coca-Cola Co.
Precedential or Non-Precedential:

Docket 93-3564




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                 UNITED STATES COURT OF APPEALS

                      FOR THE THIRD CIRCUIT

                           ____________

                    NOS.   93-3564 and 93-3604
                            ____________

                 NATIONAL LABOR RELATIONS BOARD,

                                     Petitioner/Cross-Respondent

                                v.

          GREENSBURG COCA-COLA BOTTLING COMPANY, INC.,

                                     Respondent/Cross-Petitioner
                           ____________

         Appeal from the National Labor Relations Board
                 Nos. 6-CA-22872 and 6-CA 23022
                          ____________

                        Argued June 6, 1994
      Before:   MANSMANN, ALITO, and ROSENN, Circuit Judges
                      Opinion Filed: November 23, 1994
                            ____________

VALERIE J. HOFFMAN, ESQ.
BRADFORD L. LIVINGSTON, ESQ. (Argued)
KRISTIN E. MICHAELS. ESQ.
Seyfarth, Shaw, Fairweather & Geraldson
Suite 4200
55 East Monroe Street
Chicago, Illinois 60603
  Attorneys for Respondent/Cross-Petitioner

AILEEN A. ARMSTRONG, DEPUTY ASSOCIATE GENERAL COUNSEL
CHARLES DONNELLY, SUPERVISORY ATTORNEY
JULIE E. BROIDO, SENIOR ATTORNEY (Argued)
National Labor Relations Board
Washington, D.C. 20570
  Attorneys for Petitioner/Cross-Respondent
                           ____________

                      OPINION OF THE COURT
ROSENN, Circuit Judge.



          In this labor dispute, the Administrative Law Judge

(ALJ) found that Greensburg Coca-Cola Bottling Company, Inc.

(Greensburg Coca-Cola or the Company) unlawfully bargained to

impasse and locked-out its employees to pressure them into

accepting its "final offer."    This included its proposal that the

collective bargaining unit include only full-time employees

defined as those working 40-hour weeks.    The ALJ held that such a

negotiation technique constituted bad faith bargaining, and thus

Greensburg Coca-Cola violated sections 8(a)(1), (3) and (5) of

the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (3) and

(5) (the NLRA or Act).    A divided three-member panel of the

National Labor Relations Board (the NLRB or Board) affirmed, with

corrections, the ALJ's findings and conclusions.

          The Company has filed a petition for us to review the

Board's order pursuant to 29 U.S.C. § 160(f) and the Board has

filed an application for enforcement of its order pursuant to 29

U.S.C. § 160(e).   We grant the Company's motion for review and

deny the application for enforcement.

                                 I.

          Greensburg Coca-Cola is a corporation operating as a

distribution facility in Greensburg, Pennsylvania.    Local Union

No. 30 of the Teamsters, Chauffeurs, Warehousemen and Helpers

(the Union) represents the eight to ten warehouse employees at

Greensburg Coca-Cola.    Shortly after the Company purchased the
distribution facility from its previous operator in April of

1989, the parties began negotiating a new collective bargaining

agreement and agreed to extend the previous contract during

negotiations on an indefinite basis.

          When the NLRB certified the Union to represent the

Company's warehouse employees at the Greensburg facility in June

of 1974, the Board described the bargaining unit in the

recognition clause as "[a]ll plant employees . . . excluding all

other employees."   However, the previous collective bargaining

agreement, as well as every contract since the Union's

certification, defined the bargaining unit as, "only full-time

plant employees . . . excluding all other employees."    At the

hearing before the ALJ, neither party was able to proffer a

witness who could explain why there were differences in language

between the Board certification and the parties' collective-

bargaining agreements, or testify with certainty whether regular

part-time employees were ever used by the employer during the

parties' collective bargaining relationship.

          Past collective-bargaining agreements also provided

that "all regular full-time employees" would join the Union upon

the completion of their 60-day probationary period, and that

employees covered by the agreements were not guaranteed 40 hours

of work per week.   A dispute between the parties over the

definition of "full-time" employees arose when the Union

requested that two part-time employees who had been previously

hired by the Company's predecessor in 1988 as night loaders be

made members of the bargaining unit.   Although these men were
employed on a regular basis, they often worked less than 40 hours

per week.    These employees were not members of the Union, nor had

they ever been asked or required to join.    The Union never filed

a grievance or otherwise complained that these men had not joined

the Union or that the substantive terms of the collective-

bargaining agreement were not being applied to them.1

            Immediately after the Company purchased the facility in

June 1989, the parties began their first bargaining session.      The

Company submitted numerous proposals to the Union.   One of the

proposals suggested clarifying existing contract language in the

recognition clause of the contract by specifically excluding "all

part-time employees" from the bargaining unit.    The Union

rejected the proposal, taking the position that it had

traditionally represented all employees who performed bargaining

unit work, regardless of the number of hours per week that they

worked.   The Union stated that it did not want to waive its right

to represent employees who regularly worked less than 40 hours

per week and that it had in the past represented all regularly

employed persons, regardless of the number of hours worked.

            At the second negotiating meeting, the Company withdrew

its proposal to specifically exclude regular part-time employees

from the bargaining unit.   Instead, it proposed to maintain the

language of the recognition clause as it had existed in the

previous agreements, but took the interpretive position that the

    1Greensburg Coca-Cola subsequently agreed to include the two
employees in the bargaining unit upon verifying that they had
been working full-time hours.
term "full-time plant employees" as used in the agreements meant

employees working 40 hours per week.   The Union replied that the

Company's withdrawal of its proposed language regarding part-time

employees was merely a change in form rather than in substance,

and refused to agree to the suggested definition.    The Union

expressed its concern that if part-time employees were excluded

from the bargaining unit, the Company could replace full-time

positions with part-time employees at will, thereby reducing the

size of the unit or eroding it altogether.

           At the third meeting, the parties reiterated their

positions, and the Union suggested that part-time employees were

those who did not work on a regular basis, such as summer

employees or employees who had not completed the probationary

period.   The parties again reiterated their positions at two of

the four subsequent bargaining sessions.     At the next meeting

held on July 24, 1990, the Union proposed that employees who

regularly worked less than 40 hours per week be included in the

bargaining unit, but that the Company have the right to hire

casual part-time employees on an occasional basis such as summer

vacations.   The Company rejected the Union's counter-proposal.

           The Union then asked Greensburg Coca-Cola for language

regarding its intended utilization of part-time employees, and

the Company presented the Union with what it termed its "final

offer."   This final offer contained the recognition clause as

originally stated in the previous bargaining agreements and

proposed that the Company would not utilize part-time employees

if full-time employees were on layoff status.     This proposal
provided that part-time employees would be considered

probationary, that they could be terminated at any time without

contractual recourse, and that they would not be entitled to

fringe benefits or the contractual wage rate, but would be paid

as determined by the Company.    When the Union rejected the

proposal, the Company served the Union with notice of its intent

to terminate the extension agreement effective July 27, 1990.

            The Union, however, objected to terminating the

negotiations and the parties held two more bargaining meetings,

but failed to make any progress.    On September 19, 1990,

Greensburg Coca-Cola locked out all of the employees in the

warehouse bargaining unit in an effort to apply economic pressure

on them to accept its final offer.    The Company hired temporary

replacements to take the place of locked out employees.      After

the lockout began, the parties held two more bargaining meetings

where the parties discussed many issues and reiterated their

positions regarding part-time employees, but again no progress

was made.    The ALJ credited Union testimony that the Company made

it clear that the lockout would end only when the Union ratified

the final offer.

            After the Union filed the charges at issue here, the

parties met once again.    The ALJ credited the Union's testimony

that at that meeting the Company altered its final offer with

respect to the recognition clause, proposing for the first time

that regular part-time employees be included in the bargaining

unit.   The parties then resolved this issue, although the lockout

continued because the Union did not accept the Company's final
offer as a whole which included a number of other proposals that

had also been the subject of negotiations.

           The ALJ noted that throughout every negotiating meeting

the parties discussed various proposals and counter-proposals

pertaining to other mandatory subjects of collective bargaining.

The ALJ held that although the parties discussed the recognition

clause and its interpretation, they also discussed wages, health

and welfare benefits, pensions, holidays, vacations, grievance

and arbitration procedures, management rights, and employee work

rules.    Greensburg Coca-Cola alleges that the parties disagreed

on 32 subjects.   Although not discussed by the ALJ, we presume

that the parties could not agree on one or more of these other

issues, thereby forcing the lockout to continue.

                                II.

           The Board's application of the law to particular facts

and its factual findings are conclusive if supported by

substantial evidence on the record as considered as a whole,

including any evidence detracting from the Board's view.    NLRB v.

Pizza Crust Co., 862 F.2d 49, 51 (3d Cir. 1988); 29 U.S.C. §

160(e).   Therefore, this court "may [not] displace the Board's

choice between two fairly conflicting views, even though the

court would justifiably have made a different choice had the

matter been before it de novo."    Universal Camera Corp. v. NLRB,

340 U.S. 474, 488 (1951).

           Our review of questions of law is plenary.   Tubari,
Ltd. v. NLRB, 959 F.2d 451, 453 (3d Cir. 1992).    However, we give

some, but not unlimited, deference to the NLRB's construction of
a statute.    See NLRB v. International Assoc. of Bridge, etc., 434

U.S. 335, 350 (1978).    Thus, "[w]e will enforce a Board order

that rests on a construction of the NLRA that is not 'an

unreasonable or unprincipled construction of the statute.'"       NLRB

v. Joy Technologies, Inc., 990 F.2d 104, 108 (3d Cir. 1993)

(citations omitted).

                                 III.

           The issue before us is whether Greensburg Coca-Cola

insisted on a non-mandatory subject of bargaining as a condition

to a labor agreement.    Sections 8(a)(5), 8(b)(3) and 8(d) of the

NLRA, 29 U.S.C. §§ 158(a)(5), (b), and (d), require an employer

to bargain "in good faith" with the statutory representative of

its employees with respect to "wages, hours, and other terms and

conditions of employment."    Neither party is legally obligated to

yield to the other on these mandatory subjects of bargaining.       As

to non-mandatory matters, however, each party is free to bargain

or not to bargain.    NLRB v. Wooster Div. of Borg-Warner Corp.,

356 U.S. 342, 348-49 (1958).     Thus, a party violates section

8(a)(5) of the Act by insisting, even in good faith, on a non-

mandatory subject as a precondition to reaching agreement on

mandatory subjects.    Id.; NLRB v. Pennsylvania Telephone Guild,
799 F.2d 84, 87 (3d Cir. 1986).

             The recognition clause in a collective bargaining

agreement is not a mandatory subject of bargaining.     See Borg-

Warner, 356 U.S. at 350.    Neither is the scope of a bargaining

unit.   See NLRB v. International Union of Operating Engineers,
532 F.2d 902, 907 (3d Cir. 1976), cert. denied, 429 U.S. 1072
(1977).   Therefore, although the parties are free to negotiate

about the scope of the bargaining unit, the employer may not make

this a prerequisite to an agreement on mandatory items.    Id; see

also Hill-Rom Co. v. NLRB, 957 F.2d 454, 457 (7th Cir. 1992) ("if

an employer could vary unit descriptions at will, it would have

the power to sever the link between a recognizable group of

employees and its union as the collective bargaining

representative").

          Throughout all of the negotiations, Greensburg Coca-

Cola insisted that part-time employees were historically excluded

from the bargaining union.   To support its position, the Company

emphasizes that the plain language of the previous contract's

recognition clause states that the bargaining unit is to include

"only full-time plant employees."   Greensburg Coca-Cola

additionally notes that the two part-time night loaders had

worked for over a year without being included in the Union.    The

Company argues that it is incredible that two employees would

forgo their right to union wages and benefits for over one year

if they were in fact entitled to join the Union.   The Company

further contends that if the Union so firmly believed that the

two men belonged in the bargaining unit based on the completion

of their probationary periods, the Union would have insisted that

they be admitted immediately.

          The ALJ acknowledged that the Company's argument had

surface appeal, but rejected it upon considering the previous

collective bargaining agreements as a whole and noting

specifically that employees were not guaranteed a full 40 hours
of work per week.   The ALJ credited Union testimony that the

omission of the two night loaders was an oversight and that upon

the Union's recognition of the oversight, it immediately raised

the matter, but that the Company requested the Union to postpone

discussing the issue until the upcoming contract negotiations.

The ALJ found that the oversight was understandable, given the

high attrition rate among night loaders.

          The ALJ further found the testimony of the Union

steward to be credible.   The Union steward, who was on the

Union's negotiating committee in 1974, testified that he

understood the term "full-time employee" to mean all employees

working on a regular basis who had completed their probationary

period, regardless of the number of hours worked per week.      He

testified in essence that employees were historically considered

"part-time" until they completed their probationary period, at

which time they joined the Union pursuant to the security clause

and were thereafter considered "full-time."   The Union steward

testified that he was not aware of any employee working less than

40 hours per week on a regular basis who had been excluded from

the bargaining unit, with the sole exception of students hired as

summer help.   These students were not considered part of the

bargaining unit, were not required to join the Union pursuant to

the security clause, and were not accorded contract benefits even

if they worked more than 60 days.

          The Board adopted the ALJ's finding that the Union had

historically represented all regular company employees who had

completed their probationary period, irrespective of whether they
worked 40 hours or less.   The Board further reasoned that giving

the term "full-time" the literal interpretation urged by the

Company would allow it to reduce the size of the unit at will

because the contract did not guarantee employees a 40-hour work

week and it gave the Company the right to unilaterally curtail

work hours.

          Greensburg Coca-Cola argues that the Board's and the

ALJ's finding that it was attempting to change the scope of the

bargaining unit is inconsistent with the evidence that after it

withdrew its first proposal, it maintained the language of the

previous recognition clause.   The Company suggests that the

recognition clause issue was of little importance to the parties.

As support, it points out that the parties did not discuss the

interpretation issue of part-time employees in the two meetings

after the submission of its final offer, and did not raise it

again until the first meeting after the lockout.   The Company

further notes that the first two unfair labor practice charges

filed by the Union failed to mention the part-time issue.

Finally, Greensburg Coca-Cola suggests that because the parties

were apart on so many other issues and because the Union failed

to respond to the final proposal, the Company believed that it

had met the Union's concerns with respect to part-time employees.

          We find the Company's assertions to be persuasive and

supported by the record.   The Board's finding that Greensburg

Coca-Cola bargained to impasse on the exclusion from the unit of

part-time employees as a condition to reaching agreement is not

supported by the record.   To the contrary, the record shows that
it was only in the Company's first contract proposal that it

expressly sought to exclude part-time employees from the unit.

After withdrawing this proposal, the Company did not attempt to

alter the bargaining unit but rather merely advanced its

interpretation of the contractual language.   The party's

disagreement as to the interpretation of the term "full-time

plant employee" is not the equivalent of insisting on a change in

the recognition clause of the contract.   Moreover, as noted by

the Board's dissenting opinion, had any question arisen after the

execution of the collective bargaining agreement over the

interpretation of the scope of the recognition clause, the matter

readily could have been resolved by arbitration under the

grievance machinery in the agreement.   Thus, the Board erred in

holding that the Company sought, through bargaining demands, in

violation of sections 8(a)(1), (3), and (5) of the Act, to narrow

the scope of those employees historically represented by the

Union.

                               IV.

           Greensburg Coca-Cola additionally challenges the

Board's holding that it unlawfully locked out unit employees in

violation of sections 8(a)(1), (3), and (5) of the Act.     The

Board adopted the ALJ's conclusion that the Company unlawfully

locked out unit employees in support of its proposal to exclude

part-time employees from the bargaining unit.   The Company

asserts that the Board erred by failing to analyze whether there

was a nexus between the alleged unfair labor practice and the

lockout.
          An employer may lock out employees for the purpose of

applying economic pressure on a union in support of a legitimate

bargaining position.   American Ship Building Co. v. N.L.R.B., 380

U.S. 300, 310 (1965); Local 825, International Union of Operating

Engineers v. NLRB, 829 F.2d 458, 460-61 (3d Cir. 1987).    An

employer, however, violates the NLRA by locking out employees to

compel acceptance of an unfair labor practice, such as insisting

on a non-mandatory subject as a precondition to reaching

agreement on mandatory subjects.    See American Ship Building Co.,

380 U.S. at 308-09; Teamsters Local Union No. 639 v. NLRB, 924

F.2d 1078, 1085 (D.C. Cir. 1991).

          On September 19, 1990, Greensburg Coca Cola locked out

employees and hired temporary replacements, informing the Union

that it would end the lockout only if Union members ratified its

final offer.   Two months later, the Company altered its final

offer, proposing to adopt a recognition clause that expressly

included part-time employees in the unit.    Importantly, the

Company continued the lockout after it modified its proposal to

include part-time employees in the recognition clause.     This fact

clearly demonstrates that the issue of part-time employees was

not central to the lockout.

          The record shows that the lockout did not have an

effect on the continued bargaining of the parties as to the issue

of part-time employees.   Because the parties had reached a

general impasse in bargaining on other issues, the Company's

interpretive position regarding the recognition clause was not

the cause of the impasse or the lockout.    See Latrobe Steel Co.
v. NLRB, 630 F.2d 171, 181 (3d Cir. 1980) (for a strike to be

deemed an unfair labor practice strike, it must, at least in

part, be caused by an unfair labor practice; the mere fact that

an unfair labor practice is committed prior to a strike does not

necessarily render that strike an unfair labor practice strike),

cert. denied, 454 U.S. 821 (1981).    Thus, the Company lawfully

locked out unit employees for the purpose of applying economic

pressure on the Union in support of a legitimate bargaining

position.   Accordingly, the Board erred in holding that the lock

out violated sections 8(a)(1), (3), and (5) of the Act.

                                 V.

            Accordingly, Greensburg Coco-Cola's petition for review

will be allowed and the NLRB's motion for enforcement of its

order will be denied.   Each side to bear its own costs.
NLRB v. Greensburg Coca Cola Bottling Co., Nos. 93-3564/3604




MANSMANN, J., dissenting.




            I respectfully dissent from the majority opinion

because I believe that Greensburg Coca-Cola's insistence on its

definition of "full-time" employee constituted an unfair labor

practice.

            I do not disagree with the majority opinion's

presentation of the law regarding unfair labor practice.        I

would emphasize, however, that in NLRB v. Wooster Div. of Borg-

Warner Corp., 356 U.S. 342, 349 (1958), the Supreme Court held

that for a party to insist on a non-mandatory subject of

bargaining is, "in substance," a refusal to bargain about

mandatory subjects of bargaining.    Obviously that does not mean

that negotiations are only to include mandatory subjects of

bargaining, but that a party may not lawfully insist upon a non-

mandatory subject as a condition to any agreement.   Id.      The

Court further held that the recognition clause in a collective

bargaining agreement is not a mandatory subject of bargaining.

Therefore, the scope of the bargaining unit is not a subject upon

which either party may insist as a condition to the labor

contract.    This conclusion is a cornerstone to successful

collective bargaining, for parties cannot meaningfully bargain

about the wages, hours, or conditions of employment unless they
have agreed to the bargaining unit.   Douds v. Internal

Longshoremen's Ass'n, 241 F.2d 278, 282 (2d Cir. 1957).    See also

Boise Cascade Corp. v. NLRB, 860 F.2d 471, 475 (D.C. Cir. 1988);

Newspaper Printing Corp. v. NLRB, 625 F.2d 956, 963 (10th Cir.

1980), cert. denied, 450 U.S. 911 (1981); Hess Oil & Chem. Corp.

v. NLRB, 415 F.2d 440, 445 (5th Cir. 1969), cert. denied, 397

U.S. 916 (1970).

           Here, throughout all of the negotiations, Greensburg

Coca-Cola insisted on its interpretation of the previous

contract's recognition clause.   Greensburg Coca-Cola argued that

its belief that part-time employees were historically excluded

from the bargaining unit was due to the plain language of the

recognition clause, which stated that the bargaining unit was to

include "only full-time plant employees."   The Board found,

however:   "As the newly arrived successor, the Respondent

admittedly had no idea what past meaning had attached to the term

`full-time employees.'"

           In support of its position, Greensburg Coca-Cola

pointed out that the two part-time night loaders had worked for

over a year without being included in the union.   The Board held,

however, that night loaders typically had a high attrition rate

and that the reason the two employees were not included in the

union at the conclusion of their probationary period was merely

an oversight.   The Board further found that, upon the union's

recognition of the oversight, it immediately raised the matter;
at the company's request, the parties postponed discussing the

issue until the upcoming contract negotiations.    Finally, the

Board credited the union business agent's testimony that the two

night loaders did not want to pay back dues or start trouble with

the company.

            Although the company's arguments raise legitimate

questions for the union,2 they do not negate Greensburg Coca-

Cola's unlawful insistence on a non-mandatory subject of

bargaining.     Borg-Warner instructs us that at the moment

Greensburg Coca-Cola submitted its "final offer" to the union

containing its interpretation of the term "full-time," as the

Board found, Greensburg Coca-Cola committed an unfair labor

practice.     It is of no accord that Greensburg Coca-Cola

subsequently agreed to include part-time employees in the

bargaining unit nor that the parties were apart on other matters.

The unlawful conduct need not be the sole cause for the failure

to reach an agreement.     Industrial Union of Marine & Shipbuilding

Workers v. NLRB, 320 F.2d 615, 618 (3d Cir. 1963) ("If the

proposal is not a mandatory bargaining subject, insistence upon

it was a per se violation of the duty to bargain."), cert.


    2
          Greensburg Coca-Cola countered that it was incredible
that two employees would forgo their right to union wages and
benefits for over one year if they were in fact entitled to join
the union. If the union so firmly believed that the two men
belonged in the bargaining unit based on the fact that they had
completed their probationary periods, the company argued, the
union would have insisted that they be admitted immediately.
denied, 375 U.S. 984 (1964).     See also Latrobe Steel Co. v. NLRB,

630 F.2d 171, 179 (3d Cir. 1980) ("What Borg-Warner prohibits is

insistence upon a non-mandatory subject as a condition precedent

to entering an agreement."), cert. denied, 454 U.S. 821 (1981).

          I take issue with the majority's crediting of

Greensburg Coca-Cola's argument that the Board's and the ALJ's

finding that it was attempting to change the scope of the

bargaining unit is inconsistent with the evidence that after it

withdrew its first proposal, Greensburg Coca-Cola maintained the

language of the previous recognition clause.    Although this is

true, there is substantial evidence in the record regarding the

negotiations to support the Board's finding that Greensburg Coca-

Cola had consistently attempted to exclude part-time employees

from the bargaining unit.3

          I find it noteworthy that the parties' disagreement was

not merely on the interpretation of the term "full-time" as

Greensburg Coca-Cola suggests.    Greensburg Coca-Cola submitted

its "final offer" containing the recognition clause language from

previous collective bargaining agreements, as well as a proposal

offering that the company would not utilize part-time employees

if full-time employees were on layoff status.     The ALJ did not

credit Greensburg Coca-Cola's self-serving testimony that it

    3
          Furthermore, Greensburg Coca-Cola's argument that an
impasse had not yet occurred conflicts squarely with our own
analysis of that same argument in Latrobe Steel, 630 F.2d at 179
(holding that impasse is not the test under Borg-Warner).
believed it met the union's concern with respect to part-time

employees with this offer.    Further, the Board found that

Greensburg Coca-Cola, by this proposal, intended to exclude part-

time employees from contract coverage, and that it consistently

attempted to insert its interpretation of "full-time employees"

into the contract language.

           There is substantial evidence in the record to support

this finding.    I note the testimony that, although Greensburg

Coca-Cola maintained the original contract language describing

the unit scope as "full-time" employees, it conveyed quite

clearly that it interpreted "full-time" to mean employees working

40 hours per week, which is contrary to the previous course of

dealing.   The Board's position is also supported by Greensburg

Coca-Cola's original rejection of the union's proposal to include

part-time employees in the unit scope.

           There is certainly substantial evidence in the record,

even considering the arguments of Greensburg Coca-Cola, that

Greensburg Coca-Cola unlawfully insisted on changing the scope of

the bargaining unit.    I am particularly impressed by the union

steward's explanation of the previous understanding of the term

"full-time."    The previous course of dealing is significant from

a factual standpoint; as a matter of law Greensburg Coca-Cola

violated §§ 8(a)(1), (3) and (5) at the moment it insisted on its
interpretation of the scope of the bargaining unit, which is a

non-mandatory subject of bargaining.4

          I dissent, too, from the majority's crediting of

Greensburg Coca-Cola's argument that the Board failed properly to

analyze whether there was a nexus between the unfair labor

practice and the lockout.   The Board adopted the ALJ's conclusion

that Greensburg Coca-Cola unlawfully locked out unit employees in

support of its proposal altering the unit's scope.   As a matter

of law, I agree.   A lockout that is used to support an unlawful

bargaining position is itself unlawful and violates the NLRA,

specifically §§ 8(a)(1), (3), and (5).   Therefore, since I am of

the opinion that Greensburg Coca-Cola maintained an unlawful

bargaining position with regard to unit scope, it is a short step

for me to conclude that its lockout in support of that position

was unlawful.

          For the foregoing reasons I would have granted the

NLRB's motion for enforcement of its order and denied Greensburg

Coca-Cola's petition for review.




    4
           In light of my conclusion that Greensburg Coca-Cola
unlawfully insisted on a non-mandatory subject of bargaining, I
find unavailing the majority's crediting of Greensburg Coca-
Cola's suggestions that the recognition clause issue was of
little importance to the parties and that because the parties
were apart on so many other issues and the union failed to
respond to the final proposal, Greensburg Coca-Cola believed that
it had met the union's concerns with respect to part-time
employees.
