National Labor Relations Board v. Brown

Citation13 L.Ed.2d 839,85 S.Ct. 980,380 U.S. 278
Decision Date29 March 1965
Docket NumberNo. 7,7
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. John BROWN et al
CourtUnited States Supreme Court

[Syllabus from pages 278-279 intentionally omitted] Norton J. Come, Washington, D.C., for petitioner.

William L. Keller, Dallas, Tex., for respondents.

Mr. Justice BRENNAN delivered the opinion of the Court.

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. 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 National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381, but that the respondents had violated § 8(a)(1) and (3) of the National Labor Relations Act1 by locking out their regular employees and using temporary replacements to carry on business. 137 N.L.R.B. 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, 84 S.Ct. 484, 11 L.Ed.2d 413. We affirm the Court of Appeals.

Five operators of six retail food stores in Carlsbad, New Mexico, make up the employer group. The stores had bargained successfully on a group basis for many years with Local 462 of the Retail Clerks International Association. Negotiations for a new collective-bargaining agreement to replace the expiring one began in January 1960. Agreement was reached by mid-February on all terms except the amount and effective date of a wage increase. Bargaining continued without result, and on March 2 the Local informed the employers that a strike had been authorized. The employers responded that a strike against any member of the employer group would be regarded as a strike against all. On March 16, the union struck Food Jet, Inc., one of the group. The four respondents, operating five stores, immediately locked out all employees represented by the Local, telling them and the Local that they would be recalled to work when the strike against Food Jet ended. The stores, including Food Jet, continued to carry on business by using management personnel, relatives of such personnel, and a few temporary employees; all of the temporary replacements were expressly told that the arrangement would be discontinued when the whipsaw strike ended. 2 Bargaining continued until April 22 when an agreement was reached. The employers immediately released the temporary replacements and restored the strikers and the locked-out employees to their jobs.

The Board and the Court of Appeals agreed that the case was to be decided in light of our decision in the so-called Buffalo Linen case, National Labor Relations Board v. Truck Drivers Union, 353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676. There we sustained the Board's finding that, in the absence of specific proof of unlawful motivation, the use of a lockout by members of a multiemployer bargaining unit in response to a whipsaw strike did not violate either § 8(a)(1) or § 8(a)(3). We held that, although the lockout tended to impair the effectiveness of the whipsaw strike, the right to strike 'is not so absolute as to deny self-help by employers when legitimate interests of employees and employers collide. * * * The ultimate problem is the balancing of the conflicting legitimate interests.' 353 U.S., at 96, 77 S.Ct. at 647. We concluded that the Board correctly balanced those interests in upholding the lockout, since it found that the nonstruck employers resorted to the lockout to preserve the multiemployer bargaining unit from the disintegration threatened by the whipsaw strike. But in the present case the Board held, two members dissenting, that the respondents' continued operations with temporary replacements constituted a 'critical difference' from Buffalo Linen—where all members of the employer group shut down operations—and that in this circumstance it was reasonable to infer that the respondents did not act to protect the multiemployer group, but 'for the purpose of inhibiting a lawful strike.' 137 N.L.R.B., at 76. Thus the respondents' act was both a coercive practice condemned by § 8(a)(1) and discriminatory conduct in violation of § 8(a)(3).

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 respondents' 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 labor 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., National Labor Relations Board v. Erie Resistor Corp., 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308; National Labor Relations Board v. Burnup & Sims, Inc., 379 U.S. 21, 85 S.Ct. 171, 13 L.Ed.2d 1. 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.' National Labor Relations Board v. Insurance Agents, 361 U.S. 477, 497, 80 S.Ct. 419, 4 L.Ed.2d 454. 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 § 8(a)(1) or § 8(a)(3). See, e.g., National Labor Relations Board v. Mackay Radio & Telegraph Co., supra; National Labor Relations Board v. Dalton Brick & Tile Co., 5 Cir., 301 F.2d 886, 896. 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 strikepproof.'3 As a general matter he may completely liquidate his business without violating either § 8(a)(1) or § 8(a)(3), whatever the impact of his action on concerted employee activities. Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 85 S.Ct. 994. Specifically, he may in various circumstances use the lockout as a legitimate economic weapon. See, e.g., National Labor Relations Board v. Truck Drivers Union, supra; National Labor Relations Board v. Dalton Brick & Tile Corp., supra; Leonard v. National Labor Relations Board, 9 Cir., 205 F.2d 355; Betts Cadillac Olds, Inc., 96 N.L.R.B. 268; International Shoe Co., 93 N.L.R.B. 907; Pepsi-Cola Bottling Co., 72 N.L.R.B. 601, 602; Duluth Bottling Assn., 48 N.L.R.B. 1335; Link-Belt Co., 26 N.L.R.B. 227. And in American Ship Building Co. v. Labor Board, 380 U.S. 300, 85 S.Ct. 955, we hold that a 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 imply hostile motivation any more than the lockout itself; nor do we see how they are inherently more destructive of employee rights. Rather, the compelling inference is that that was all part and parcel of respondents' defensive measure to preserve the multiemployer group in the face of the whipsaw strike. Since Food Jet legitimately continued business operations, it is only reasonable to regard respondents' action as evincing concern that the integrity of the employer group was threatened unless they also managed to stay open for business during the lockout. For with Food Jet open for business and respondents' stores closed, the prospect that the whipsaw strike would succeed in breaking up the employer association was not at all fanciful. The retail food industry is very competitive and repetitive patronage is highly important. Faced with the prospect of a loss of patronage to Food Jet, it is logical that respondents should have been concerned that one or more of their number might bolt the group and come to terms with the Local, thus destroying the common front essential to multiemployer bargaining. The Court of Appeals correctly pictured the respondents' dilemma in saying 'If * * * the struck employer does choose to operate with replacements and the other employers cannot replace after lockout, the economic advantage passes to the struck member, the nonstruck members are deterred in exercising the defensive lockout, and the whipsaw strike * * * enjoys an almost inescapable prospect of success.' 319 F.2d at 11. Clearly respondents' continued operations with the use of temporary replacements following the lockout were wholly consistent with a legitimate business purpose.

Nor are we persuaded by the Board's argument that justification for the inference of hostile motivation appears in the respondents' use of temporary employees rather than some of the regular employees. It is not commonsense, we think, to say that the regular employees were 'willing to work at the employers' terms.' 137 N.L.R.B., at 76. It seems...

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