By Melissa Regennitter

 The National Labor Relations Board won’t proceed with its investigation of a complaint that United Food and Commercial Workers Local 86D filed against Muscatine-based Grain Processing Corp.

On Jan. 13, the union filed charges that members were unlawfully locked out by GPC in August 2008.

“We received instructions from the Division of Advice — headquartered in Washington, D.C. — that we should not proceed,” Pete Perez of the National Labor Relations Board office in Peoria, Ill., said Tuesday.

The Board examined evidence in which the union alleged six employees who were part of a locked-out bargaining unit at the Muscatine plant began working in salaried supervisory positions following the lockout.

About 360 workers, including 300 members of Local 86D, have been locked out since their five-year contract with GPC expired in August 2008. Since then, the union and GPC, which makes and sells corn-based products around the world, have been unable to agree on a new contract.

Nate Willems of Cedar Rapids, the union’s attorney, said 86D will appeal the decision.

“The way the law is supposed to work is when there is a strike or a lockout it is, to a degree, an economic test of will,” Willems said. “The law allows the employer in a lockout to hire replacement workers. We don’t believe the law should, or does, allow the employer to selectively bring back individuals that were members.”

Willems said if GPC believed it could do the job without the bargaining unit then the company shouldn’t have brought back members in order to use their knowledge and experience to train the replacement employees.

In its Oct. 9 decision, the Division of Advice stated that GPC established a legitimate and substantial business justification for its conduct and did not rehire the six employees based on animosity toward the union.

The decision also states that in September 2008 GPC determined it needed:

More supervisors to train the temporary replacements and oversee their work.

The employees because the replacements were unfamiliar with the plant’s operations and there was a high degree of turnover among replacements.

Additional supervisors for safety reasons and because existing supervisors had to perform unit work.

GPC contacted nine locked-out employees regarding their willingness to work as supervisors during the lockout and to remain in those positions afterwards. The employees were chosen based on rankings of employees compiled by its division and department superintendents.

In October 2008, six employees accepted GPC’s offer and returned to the plant, receiving improved pay and benefits. Three of the six employees were Union members.

The Division of Advice determined that the initial lockout of employees was lawful because its sole purpose was to pressure employees into accepting GPC’s contract proposal.

The document explains that an employer is in volitation if it locks out its bargaining unit employees in order to discourage union activity, injure the bargaining representative, or evade a bargaining obligation.

GPC responded to a request for comment by acknowledging the decision but not divulging further information.

Willems said that the union will not give up.

“When you’re locking out people you shouldn’t be able to selectively enjoy the fruits of the labor of those you are locking out,” he added.

The Decision

The National Labor Relations Board decision can be viewed  http://www.nlrb.gov/shared_files/Advice%20Memos/2009/33-CA-15755.htm