National Labor Relations Board v. Brown
380 U.S. 278 (1965)

Annotate this Case

U.S. Supreme Court

National Labor Relations Board v. Brown, 380 U.S. 278 (1965)

National Labor Relations Board v. Brown

No. 7

Argued January 19, 1965

Decided March 29, 1965

380 U.S. 278




Respondents were members of a multiemployer bargaining group with a history of successful bargaining. After the union struck another member of the group, which continued operations using temporary replacements, respondents locked out their employees and utilized temporary replacements to continue business operations. The National Labor Relations Board found that, while the use of temporary replacements by the struck employer was lawful, the lockout of regular employees and their temporary replacement by respondents violated §§ 8(a)(1) and (3) of the National Labor Relations Act. The Court of Appeals disagreed, and refused to enforce the Board's order.


1. Although the Board need not inquire into employer motivation to support a finding of an unfair labor practice where the employer's conduct is demonstrably destructive of employee rights and is not justified by the service of significant or important business ends, respondents' lockout and subsequent operations with temporary help in the face of the struck employer's continued operations during the whipsaw strike do not constitute such conduct. Pp. 380 U. S. 282-286.

(a) Since the struck employer continued to operate, respondents might reasonably have been concerned that the integrity of the employer group was threatened unless they managed to stay open during the lockout. P. 380 U. S. 284.

(b) Respondents' continued operations with the use of temporary employees after the lockout was wholly consistent with a legitimate business purpose. P. 380 U. S. 285.

(c) Respondents' use of temporary replacements, rather than some of their regular employees, does not justify an inference of hostile motivation; to limit the respondents to the use of regular employees under the circumstances here present would be to render largely illusory the right of lockout recognized by Labor Board v. Truck Drivers Union,353 U. S. 87. P. 380 U. S. 285.

Page 380 U. S. 279

(d) Absent evidentiary findings of hostile motive, there is no support for a conclusion that respondents violated § 8(a)(1) of the Act. P. 380 U. S. 286.

2. Indispensable to a violation of § 8(a)(3) is a determination that the employer's actions were motivated by an unlawful intent, and while no specific evidence of this unlawful intent is necessary when an employer practice is inherently destructive of employee rights and is not justified by legitimate business reasons, where, as here, the tendency to discourage membership is comparatively slight, and the employer's conduct is reasonably adapted to achieve legitimate business ends, the improper intent of the employer must be established by independent evidence. Not only is the record devoid of any evidence that respondents acted with an improper intent, but it contains positive evidence of their good faith. Pp. 380 U. S. 286-290.

3. While courts should be slow to overturn an administrative decision, they are not left to sheer acceptance of the Board's conclusions, and must set aside a Board decision which rests on an erroneous legal foundation. Pp. 380 U. S. 290-292.

319 F.2d 7, affirmed.

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

Page 380 U. S. 280

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 Labor Board v. Mackay Radio & Telegraph Co.,304 U. S. 333, but that the respondents had violated § 8(a)(1) and (3) of the National Labor Relations Act [Footnote 1] 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. 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

Page 380 U. S. 281

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. [Footnote 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, Labor Board v. Truck Drivers Union,353 U. S. 87. 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

Page 380 U. S. 282

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 353 U. S. 96. 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., 373 U. S. S. 283

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