Reference no: EM131281040

The respondents, who are members of a multiemployer bargaining group, locked out their employees in response to a whipsaw strike against another member of the group [Food Jet, Inc.]. They and the struck employer continued operations with temporary replacements. The National Labor Relations Board found that the struck employer's use of temporary replacements was lawful under Labor Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, but that the respondents had violated Sections 8(a)(1) and (3) of the National Labor Relations Act by locking out their regular employees and using temporary replacements to carry on business. 137 NLRB 73. The Court of Appeals for the Tenth Circuit disagreed and refused to enforce the Board's order. 319 F.2d 7.

We granted certiorari, 375 U.S. 962. We affirm the Court of Appeals.... The Board's decision does not rest upon independent evidence that the respondents acted either out of hostility toward the Local or in reprisal for the whipsaw strike. It rests upon the Board's appraisal that the respondent's conduct carried its own indicia of unlawful intent, thereby establishing, without more, that the conduct constituted an unfair labor practice.

It was disagreement with this appraisal, which we share, that led the Court of Appeals to refuse to enforce the Board's order. It is true that the Board need not inquire into employer motivation to support a finding of an unfair practice where the employer conduct is demonstrably destructive of employee rights and is not justified by the service of significant or important business ends. See, e.g., Labor Board v. Erie Resistor Corp., 373 U.S. 221. We agree with the Court of Appeals that, in the setting of this whipsaw strike and Food Jet's continued operations, the respondents' lockout and their continued operations with the use of temporary replacements, viewed separately or as a single act, do not constitute such conduct.

We begin with the proposition that the Act does not constitute the Board as an "arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands." In the absence of proof of unlawful motivation, there are many economic weapons which an employer may use that either interfere in some measure with concerted employee activities, or which are in some degree discriminatory and discourage union membership, and yet the use of such economic weapons does not constitute conduct that is within the prohibition of either Section 8(a)(1) or Section 8 (a)(3). Even the Board concedes that an employer may legitimately blunt the effectiveness of an anticipated strike by stockpiling inventories, readjusting contract schedules, or transferring work from one plant to another, even if he thereby makes himself "virtually strikeproof."

As a general matter he may completely liquidate his business without violating either Section 8(a)(1) or Section 8(a)(3), whatever the impact of his action on concerted employee activities. Textile Workers v. Darlington Mfg. Co., Nos. 37 and 41, decided today. Specifically, he may in various circumstances use the lockout as a legitimate economic weapon.

And in American Ship Building Co. v. Labor Board, No. 255, decided today, we hold that lockout is not an unfair labor practice simply because used by an employer to bring pressure to bear in support of his bargaining position after an impasse in bargaining negotiations has been reached. In the circumstances of this case, we do not see how the continued operations of respondents and their use of temporary replacements any more imply hostile motivation, nor how they are inherently more destructive of employee rights, than is the lockout itself. Rather, the compelling inference is that this was all part and parcel of respondents' defensive measure to preserve the multiemployer group in the face of the whipsaw strike.... ...

In determining here that the respondents' conduct carried its own badge of improper motive, the Board's decision, for the reasons stated, misapplied the criteria for governing the application of Section 8(a)(1) and (3). Since the order therefore rested on an "erroneous legal foundation," the Court of Appeals properly refused to enforce it.

Case Questions

1. What factual difference existed between the Buffalo Linen case referred to in the text and the Brown case?

2. Why did the Court reverse the Board's decision?

3. What is an illegal lockout?

4. What is meant by a whipsaw strike?