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.
Held:
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� Board v. Erie Resistor Corp.,
373 U.
S. 221; Labor Board v.Burnup & Sims, Inc.,@
379 U. S. 21. 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."
Labor Board v.Insurance Agents, 361 U.
S. 477,
361 U. S. 497.
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., Labor Board v.Mackay Radio & Telegraph Co.,
supra; Labor Board v.Dalton Brick & Tile Co., 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 strike-proof." [
Footnote
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., Nos. 37 and 41,
decided today,
ante, p.
380 U. S. 263.
Specifically, he may, in various circumstances, use the lockout as
a legitimate economic weapon.
See, e.g., Labor Board
v.Truck
Page 380 U. S. 284
Drivers Union, supra; Labor Board v.Dalton Brick & Tile
Corp., supra; Leonard v. Labor Board, 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, 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,
Page 380 U. S. 285
"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 common sense, 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 probable that this "willingness" was
motivated as much by their understandable desire to further the
objective of the whipsaw strike -- to break through the employers'
united front by forcing Food Jet to accept the Local's terms -- as
it was by a desire to work for the employers under the existing
unacceptable terms. As the Board's dissenting members put it,
"These employees are willing only to receive wages while their
brethren in the rest of the association-wide unit are exerting
whipsaw pressure on one employer to gain benefits that will
ultimately accrue to all employees in the association-wide unit,
including those here locked out."
137 N.L.R.B. at 78. Moreover, the course of action to which the
Board would limit the respondents would force them into the
position of aiding and abetting the success of the whipsaw strike,
and consequently would render "largely illusory," 137 N.L.R.B. at
78-79, the right of lockout recognized by
Buffalo Linen;
the right would be meaningless if barred to nonstruck stores that
find it necessary to operate because the struck store does so.
Page 380 U. S. 286
The Board's finding of a § 8(a)(1) violation emphasized the
impact of respondents' conduct upon the effectiveness of the
whipsaw strike. It is no doubt true that the collective strength of
the stores to resist that strike is maintained, and even increased,
when all stores stay open with temporary replacements. The
pressures on the employee are necessarily greater when none of the
union employees is working and the stores remain open. But these
pressures are no more than the result of the Local's inability to
make effective use of the whipsaw tactic. Moreover, these effects
are no different from those that result from the legitimate use of
any economic weapon by an employer. Continued operations with the
use of temporary replacements may result in the failure of the
whipsaw strike, but this does not mean that the employers' conduct
is demonstrably so destructive of employee rights and so devoid of
significant service to any legitimate business end that it cannot
be tolerated consistently with the Act. Certainly then, in the
absence of evidentiary findings of hostile motive, there is no
support for the conclusion that respondents violated § 8(a)(1).
Nor does the record show any basis for concluding that
respondents violated § 8(a)(3). Under that section, both
discrimination and a resulting discouragement of union membership
are necessary, but the added element of unlawful intent is also
required. In
Buffalo Linen itself, the employers treated
the locked-out employees less favorably because of their union
membership, and this may have tended to discourage continued
membership, but we rejected the notion that the use of the lockout
violated the statute. The discriminatory act is not, by itself,
unlawful unless intended to prejudice the employees' position
because of their membership in the union; some element of
anti-union animus is necessary.
See Radio Officers' Union v.
Labor Board, 347 U. S. 17,
347 U. S. 42-44;
Labor Board v. Jones &
Laughlin Steel Corp., 301
Page 380 U. S. 287
U.S. 1 at
301 U. S. 46. We
have determined that the "real motive" of the employer in an
alleged § 8(a)(3) violation is decisive,
Associated Press v.
Labor Board, 301 U. S. 103,
301 U. S. 132;
if any doubt still persisted, we laid it to rest in
Radio
Officers' Union v. Labor Board, supra, where we reviewed the
legislative history of the provision and concluded that Congress
clearly intended the employer's purpose in discriminating to be
controlling.
Id. at
347 U. S. 44.
See also Textile Workers v. Darlington Mfg. Co., ante at
380 U. S.
275-276;
American Ship Building Co. v. Labor Board,
post at
380 U. S.
311-313;
Local 357, International Brotherhood of
Teamsters v. Labor Board, 365 U. S. 667,
365 U. S.
674-676.
We recognize that, analogous to the determination of unfair
practices under § 8(a)(1), when an employer practice is inherently
destructive of employee rights and is not justified by the service
of important business ends, no specific evidence of intent to
discourage union membership is necessary to establish a violation
of § 8(a)(3). This principle, we have said, is "but an application
of the common law rule that a man is held to intend the foreseeable
consequences of his conduct."
Radio Officers' Union v. Labor
Board, supra, at
347 U. S. 45.
For example, in
Labor Board v.Erie Resistor Corp., supra,
we held that an employer's action in awarding superseniority to
employees who worked during a strike was discriminatory conduct
that carried with it its own indicia of improper intent. The only
reasonable inference that could be drawn by the Board from the
award of superseniority -- balancing the prejudicial effect upon
the employees against any asserted business purpose -- was that it
was directed against the striking employees because of their union
membership; conduct so inherently destructive of employee interests
could not be saved from illegality by an asserted overriding
business purpose pursued in good faith. But where, as here, the
tendency to discourage union membership is comparatively slight,
and the employers'
Page 380 U. S. 288
conduct is reasonably adopted to achieve legitimate business
ends or to deal with business exigencies, we enter into an area
where the improper motivation of the employers must be established
by independent evidence. When so established, anti-union motivation
will convert an otherwise ordinary business act into an unfair
labor practice.
Labor Board v.Erie Resistor Corp., supra,
at
373 U. S. 227,
and cases there cited.
We agree with the Court of Appeals that respondents' conduct
here clearly fits into the latter category, where actual subjective
intent is determinative and where the Board must find from evidence
independent of the mere conduct involved that the conduct was
primarily motivated by an anti-union animus. While the use of
temporary nonunion personnel in preference to the locked-out union
members is discriminatory, we think that any resulting tendency to
discourage union membership is comparatively remote, and that this
use of temporary personnel constitutes a measure reasonably adapted
to the effectuation of a legitimate business end. Here, discontent
on the part of the Local's membership in all likelihood is
attributable largely to the fact that the membership was locked out
as the result of the Local's whipsaw strategem. But the lockout
itself is concededly within the rule of
Buffalo Linen. We
think that the added dissatisfaction, with its resultant pressure
on membership, attributable to the fact that the nonstruck
employers remain in business with temporary replacements is
comparatively insubstantial. First, the replacements were expressly
used for the duration of the labor dispute only; thus, the
displaced employee could not have looked upon the replacements as
threatening their jobs. At most, the union would be forced to
capitulate and return its members to work on terms which, while not
as desirable as hoped for, were still better than under the old
contract.
Page 380 U. S. 289
Second, the membership, through its control of union policy,
could end the dispute and terminate the lockout at any time simply
by agreeing to the employers' terms and returning to work on a
regular basis. Third, in light of the union shop provision that has
been carried forward into the new contract from the old collective
bargaining agreement, it would appear that a union member would
have nothing to gain, and much to lose, by quitting the union.
Under all these circumstances, we cannot say that the employers'
conduct had any great tendency to discourage union membership. Not
only was the prospect of discouragement of membership comparatively
remote, but the respondents' attempt to remain open for business
with the help of temporary replacements was a measure reasonably
adapted to the achievement of a legitimate end -- preserving the
integrity of the multiemployer bargaining unit. [
Footnote 4]
When the resulting harm to employee rights is thus comparatively
slight, and a substantial and legitimate business end is served,
the employers' conduct is
prima facie lawful. Under these
circumstances, the finding of an unfair labor practice under §
8(a)(3) requires a showing of improper subjective intent. Here,
there is no assertion by either the union or the Board that the
respondents were motivated by anti-union animus, nor is there any
evidence that this was the case. On the contrary, the background of
the employer association's relations with the union and all the
circumstances of the respondents' behavior during the dispute tend
to support the contrary conclusion: the history of labor relations
between the employers and the Local divulges that the relationship
has always been more than amicable;
Page 380 U. S. 290
union shop provisions have been incorporated in the collective
bargaining agreement between the Local and the employers for many
years; in these very negotiations, the employers' association
waived the failure of the Local to give timely notice of its desire
to bargain over new terms of employment and consented to hear the
Local's claims at the bargaining table; the record contains
undisputed testimony by the store owners that they had no bone to
pick with the Local, that, on the contrary, they thought that
unions were a good thing, but felt forced to take action in order
to preserve the multiemployer group from disintegration and to save
their considerable stock of perishable food produce. Even the
struck member of the association did not resort to permanent
replacements for the striking workers, though it could have under
Mackay; rather, it sought to ride out the dispute with
temporary replacements to avoid depriving the regular employees of
their jobs. Thus, not only is there absent in the record any
independent evidence of improper motive, but the record contains
positive evidence of the employers' good faith. In sum, the Court
of Appeals was required to conclude that there was not sufficient
evidence gathered from the record as a whole to support the Board's
finding that respondents' conduct violates § 8(a)(3).
See
Universal Camera Corp. v. Labor Board, 340 U.
S. 474.
It is argued, finally, that the Board's decision is within the
area of its expert judgment, and that, in setting it aside, the
Court of Appeals exceeded the authorized scope of judicial review.
This proposition rests upon our statement in
Buffalo Linen
that, in reconciling the conflicting interests of labor and
management, the Board's determination is to be subjected to
"limited judicial review." 353 U.S. at
353 U. S. 96.
When we used the phrase "limited judicial review," we did not mean
that the balance struck by the Board is immune from judicial
examination and reversal
Page 380 U. S. 291
in proper cases. [
Footnote
5] Courts are expressly empowered to enforce, modify, or set
aside, in whole or in part, the Board's orders, except that the
findings of the Board with respect to questions of fact, if
supported by substantial evidence on the record considered as a
whole, shall be conclusive. National Labor Relations Act, as
amended, §§ 10(e), (f), 29 U.S.C. §§ 160(e), (f) (1958 ed.). Courts
should be "slow to overturn an administrative decision,"
Labor
Board v.Babcock & Wilcox Co., 351 U.
S. 105,
351 U. S. 112,
but they are not left "to "sheer acceptance" of the Board's
conclusions,"
Republic Aviation Corp. v. Labor Board,
324 U. S. 793,
324 U. S. 803.
Reviewing courts are not obliged to stand aside and rubber-stamp
their affirmance of administrative decisions that they deem
inconsistent with a statutory mandate or that frustrate the
congressional policy underlying a statute. Such review is always
properly within the judicial province, and courts would abdicate
their
Page 380 U. S. 292
responsibility if they did not fully review such administrative
decisions. Of course, due deference is to be rendered to agency
determinations of fact, so long as there is substantial evidence to
be found in the record as a whole. But where, as here, the review
is not of a question of fact, but of a judgment as to the proper
balance to be struck between conflicting interests,
"[t]he deference owed to an expert tribunal cannot be allowed to
slip into a judicial inertia which results in the unauthorized
assumption by an agency of major policy decisions properly made by
Congress."
American Ship Building Co. v. Labor Board, post at
380 U. S.
318.
Courts must, of course, set aside Board decisions which rest on
an "erroneous legal foundation."
Labor Board v. Babcock &
Wilcox Co., supra, at
351 U. S. 112-113. Congress has not given the Board
untrammeled authority to catalogue which economic devices shall be
deemed freighted with indicia of unlawful intent.
Labor Board
v.Insurance Agents, supra, at
361 U. S. 498.
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 governing the application of §§
8(a)(1) and (3). Since the order therefore rested on an erroneous
legal foundation, the Court of Appeals properly refused to enforce
it. [
Footnote 6]
Affirmed.
[
Footnote 1]
National Labor Relations Act, as amended, § 8(a), 61 Stat. 140,
29 U.S.C. § 158(a) (1958 ed.) provides:
"It shall be an unfair labor practice for an employer --"
"(1) to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 157 of this
title;"
"
* * * *"
"(3) by discrimination in regard to hire or tenure of employment
or any term or condition of employment to encourage or discourage
membership in any labor organization. . . ."
National Labor Relations Act, as amended, § 7, 61 Stat. 140, 29
U.S.C. § 157 (1958 ed.) provides:
"Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and shall also have the right to
refrain from any or all of such activities except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment. .
. ."
[
Footnote 2]
Food Jet used supervisory personnel and hired some "sack boys";
respondent Safeway Stores, which operated two stores in Carlsbad,
closed one and transferred its managerial personnel to the other;
respondent Thrifty Way Food Stores used management personnel and
their wives and also hired some part-time "box boys"; respondent
Brown Food Store relied on management personnel and their
relatives, and a "sack boy" transferred from an out-of-town branch
store; respondent Cashway Food Stores also relied on management
personnel and their relatives and some transferees from out-of-town
branches.
[
Footnote 3]
See brief for the National Labor Relations Board in
American Ship Building Co. v. Labor Board, 380 U.
S. 300.
See also 76 Harv.L.Rev. 1494, 1497.
[
Footnote 4]
For a history of rejection by Congress of proposals to limit or
outlaw multiemployer bargaining,
see Buffalo Linen, 353
U.S. at
353 U. S.
95-96.
[
Footnote 5]
This is evident from the authorities cited in
Buffalo
Linen, 353 U.S. at
353 U. S. 96, n.
28.
In
Labor Board v.Babcock & Wilcox Co., 351 U.
S. 105, we set aside, as resting on an erroneous legal
foundation, a Board decision finding that the employer's refusal to
allow distribution of union literature on a company-owned parking
lot violated § 8(a)(1). In
Republic Aviation Corp. v. Labor
Board, 324 U. S. 793, we
sustained the Board's decision, but emphasized that judicial review
is contemplated by 29 U.S.C. §§ 160(e), (f), 324 U.S. at
324 U. S. 799.
Phelps Dodge Corp. v. Labor Board, 313 U.
S. 177, involved a question of remedy as to which the
statute expressly grants the Board broad authority, 29 U.S.C. §
160(c). Since
Buffalo Linen, numerous Board orders have
been set aside as outside of the Board's statutory authority.
See, e.g., Labor Board v.Insurance Agents, 361 U.
S. 477;
Labor Board v.Drivers Local Union,
362 U. S. 274;
Local 357, International Brotherhood of Teamsters v. Labor
Board, 365 U. S. 667;
Labor Board v.Fruit and Vegetable Packers, 377 U. S.
58. Even where the Board is sustained, its analysis in
support of its conclusion is subjected to full, independent
judicial review.
See Labor Board v.Erie Resistor Corp.,
supra.
[
Footnote 6]
We do not here decide whether the case would be the same had the
struck employer exercised its prerogative to hire permanent
replacements for the strikers under our rule in
Labor Board
v.Mackay Radio & Telegraph Co., 304 U.
S. 333, and the nonstruck employers had then hired
permanent replacements for their locked-out employees.
MR. JUSTICE GOLDBERG, whom THE CHIEF JUSTICE joins,
concurring.
I agree with the Court that, given the
Buffalo Linen
case,
Labor Board v.Truck Drivers
Union, 353 U.S.
Page 380 U. S. 293
87, and applying it in light of the actualities of industrial
relations, the employers' conduct here is shown to be justified,
and necessary to preserve the integrity of the employers'
bargaining unit. After the union attempted a whipsaw strike against
one member of the multiemployer bargaining unit, the other members
locked out their employees. The struck employer attempted to carry
on business by using management personnel, relatives of such
personnel, and a few temporary employees. To avoid the whipsaw
effect of the strike, the nonstruck employers then did the same.
During the period of the lockout, all of the employers, struck as
well as nonstruck, bargained with the union, and, when agreement
was reached, in all cases, the temporary employees were dismissed
and the union employees returned to their jobs.
As the Court seems to recognize,
ante, p.
380 U. S. 292,
n. 6, this would be an entirely different case had the nonstruck
employers locked out their employees and hired permanent
replacements even if the struck employer had exercised his right to
hire permanent replacements under the doctrine of
Labor Board
v.Mackay Radio & Telegraph Co., 304 U.
S. 333. If the Labor Board determined in such a case
that the interference with employee rights was not justified by the
legitimate economic interests of the employer, the Labor Board
determination might well be controlling.
See my concurring
opinion in
American Ship Building Co. v. Labor Board,
post, at
380 U.S. 327.
Cf. Labor Board v.Erie Resistor Corp., 373 U.
S. 221. There would be grave doubts as to whether the
act of locking out employees and hiring permanent replacements is
justified by any legitimate interest of the nonstruck employers,
for
Buffalo Linen makes clear that the test in such a
situation is not whether parity is achieved between struck and
nonstruck employers, but, rather, whether the nonstruck employers'
actions are necessary to counteract the whipsaw effects of the
strike and to preserve the employer
Page 380 U. S. 294
bargaining unit. Since, in this case, the nonstruck employers
did nothing more than hire temporary replacements, an activity
necessary to counter whipsawing by the union and to preserve the
bargaining unit, I agree that, applying
Buffalo Linen, the
judgment of the Court of Appeals should be affirmed.
MR. JUSTICE WHITE, dissenting.
I cannot agree with the severe restrictions which the Court
imposes on the Board's role in determining the employer conduct
banned by §§ 8(a)(1) and (3) of the NLRA. This Court has long
recognized that
"[a] statute expressive of such large public policy as that on
which the National Labor Relations Board is based must be broadly
phrased and necessarily carries with it the task of administrative
application,"
Phelps Dodge Corp. v. Labor Board, 313 U.
S. 177,
313 U. S. 194,
and has repeatedly held that the Board may find some conduct
sufficiently destructive of concerted activities and union
membership as to fall within the broad language of §§ 8(a)(1) and
(3) notwithstanding that the employer has a business justification
for his actions.
Republic Aviation Corp. v. Labor Board,
324 U. S. 793;
Labor Board v.Truck Drivers Union, 353 U. S.
87 (
Buffalo Linen);
Labor Board v.Erie
Resistor Corp., 373 U. S. 221;
Labor Board v.Burnup & Sims, Inc., 379 U. S.
21. The Board holds that a lockout, together with the
hiring of replacements by the nonstruck employers of a
multiemployer bargaining unit, violate § 8(a)(1) and (3). The Court
decides that this holding is an "unauthorized assumption by an
agency of major policy decisions properly made by Congress,"
ante at p.
380 U. S. 292,
and that the "proper balance to be struck between conflicting
interests" requires affirmance of the denial of enforcement of the
Board's order. This decision represents a departure from the many
decisions of this Court holding that the Board has primary
responsibility to
Page 380 U. S. 295
weigh the interest of employees in concerted activities against
that of the employer in operating his business,
Phelps
Dodge, 313 U. S. 177;
Buffalo Linen, 353 U. S. 87,
353 U. S. 95;
Erie Resistor, 373 U. S. 221;
Burnup & Sims, 379 U. S. 21. The
Board's discretion under these sections is not without substantial
limits imposed by the policy of the Act and the requirement that
the Board "disclose the basis of its order" and "give clear
indication that it has exercised the discretion with which Congress
has empowered it."
Phelps Dodge, 313 U.
S. 177,
313 U. S. 197;
cf. Burlington Truck Lines v. United States, 371 U.
S. 156,
371 U. S. 168.
But, in my view, the Board has set out the basis and requisite
findings for its order in this case, and has not exceeded its power
in finding the lockout and replacement of union employees an unfair
labor practice.
The Court reasons that
Buffalo Linen gave the nonstruck
employer in a multiemployer unit a "right" to lock out whenever a
member of the unit is struck so that a parity of economic advantage
or disadvantage between the struck and nonstruck employers can be
maintained. In order to maintain parity where the struck employer
hires replacements, the nonstruck employers must also be free to
hire replacements, lest the right to lock out to protect the unit
be illusory. And they need not offer these jobs to the locked-out
employees desiring to work, lest the parity between the struck and
nonstruck employers be lost and the right to lock out be
meaningless. If this reasoning is sound, the nonstruck employers
can not only lock out employees who belong to the union because of
their union membership, but also hire permanent, as well as
temporary, nonunion replacements whenever the struck employer hires
such replacements, for parity may well so require. But I cannot
accept this reasoning.
One,
Buffalo Linen established no unqualified "right"
of employers in a multiemployer unit to lock out. Rather, it held
that the Board was well within the policy and
Page 380 U. S. 296
language of the Act in finding no unfair labor practice in the
nonstruck members' ceasing operations after the union had
successfully shut down the operations of one of the employers.
Although a departure from the Board's general ban on lockouts
because of their severe effect on protected employee rights, the
Board found such a lockout justified by the union-imposed pressure
on the employer unit where one employer could not operate and the
others maintained full operations. The Board decided that the Act
did not require the employers to contribute to this pressure by
maintaining full operations.
Two, the threat to the integrity of the multiemployer unit, the
consideration that was decisive in
Buffalo Linen, is
obviously very different where the struck employer continues
operations with replacements; it certainly cannot be assumed that
the struck employer operating with replacements is at the same
disadvantage
vis-a-vis the nonstruck employers as the
employer in
Buffalo Linen whose operations were totally
shut down by the union. Indeed, there was no showing here that the
struck employer was substantially disadvantaged at all, and the
Board found that there was "no economic necessity . . . for the
other members shutting down." 137 N.L.R.B. 73 at 77. The Court
makes irrelevant the consideration that justified the lockout in
Buffalo Linen -- the effect of the single employer strike
on the unit -- on the faulty premise that
Buffalo Linen
established the nonstruck members' right to lock out. Neither the
Board nor this Court said the right to lock out ineluctably follows
from a single employer strike.
Three, the disparity between the struck employer who resumes
operations and the nonstruck employers who choose to lock out to
maintain a united front is caused by the unilateral action of one
of the employer members of the unit, and not by the union's
whipsawing tactic. The integrity of the multiemployer unit may be
important,
Page 380 U. S. 297
but surely that consideration cannot justify employer tandem
action destructive of concerted activity.
Four, the Court asserts that the right of nonstruck employers to
hire temporary replacements, and to refuse to hire union men, is
but a concomitant of the right to lock out to preserve the
multiemployer group. This sanctification of the multiemployer unit
ignores the fundamental rule that an employer may not displace
union members with nonunion members solely on account of union
membership, the prototype of discrimination under § 8(a)(3),
Labor Board v.Mackay Radio & Telegraph Co.,
304 U. S. 333, and
may not maintain operations and refuse to retain or hire
nonstriking union members, notwithstanding that most of the union
members and most of the workers at that very plant are on strike.
The struck employer need not continue operations, but, if he does,
he may not give a preference to employees not affiliated with the
striking union, any more than he may do so after the strike, for §
7 explicitly and unequivocally protects the right of employees to
engage and not to engage in a concerted activity, and § 8(a)(3)
clearly prohibits discrimination which discourages union
membership.
See Firth Carpet Co. v. Labor Board, 129 F.2d
633 (C.A.2d Cir.);
Labor Board v.Shenandoah-Dives Mining
Co., 145 F.2d 542 (C.A.10th Cir.);
Labor Board
v.Clausen, 188 F.2d 439 (C.A.3d Cir.),
cert. denied,
342 U.S. 868;
Labor Board v.Anchor Rome Mills, 228 F.2d
775, 780 (C.A.5th Cir.);
Labor Board v.Robinson, 251 F.2d
639 (C.A.6th Cir.). If dismissing and replacing nonstriking union
members at a struck plant discourages union membership and
interferes with concerted activities, I fail to understand how this
same conduct at a nonstruck plant, even if in the name of
multiemployer parity and unity, has a different effect on employee
rights. The employees are not on strike, and desire to work, for
whatever reasons, and nothing in the right to lock out can alter
these facts.
Page 380 U. S. 298
The Court finds it unnecessary to explain how they are removed
from the explicit protections of the Act, except to say they belong
to the union or the unit the union represents, and to assume
conclusively they share its whipsawing purpose. Membership has
never quite meant this before. The Court's justification for this
invasion of employee rights by a member of a multiemployer unit is
the employer's right to burden the union strike fund with all its
members to bring economic pressure to bear on the union.
Unfortunately, this reasoning has equal, if not greater, force in
the single employer partial strike situation.
Finally, I cannot agree with the Court's fundamental premise on
which its balance of rights is founded: that a lockout followed by
the hiring of nonunion men to operate the plant has but a "slight"
tendency to discourage union membership, which includes
participation in union activities,
Radio Officers' Union v.
Labor Board, 347 U. S. 17, and
to impinge on concerted activity generally. This proposition
overturns the Board's long held views on the effect of lockouts and
dismissal of union members. Moreover, it is difficult to fathom the
logic or industrial experience which, on the one hand, dictates
that a guarantee to strike replacements that they will not be laid
off after a strike is "inherently destructive of employee
interests," although based on a legitimate and important business
justification,
Erie Resistor, 373 U.
S. 221, and yet, at the same time, dictates that the
dismissal of and refusal to hire nonstriking union members, who
desire to work, because other union members working for a different
employer have struck, have but a slight unimportant inhibiting
effect on the affiliation with the union and on concerted
activities. I think the Board's finding that this activity
substantially burdens concerted activities and discourages union
membership is far more consistent with
Erie Resistor and
industrial realities. Hence, the Board
Page 380 U. S. 299
was well within its authority in opting for explicitly protected
statutory rights of employees as against a limited employer
privilege allowable only in exceptional circumstances under an
unbroken line of Board decisions since the inception of the
Act.
"Although the Act protects the right of the employees to strike
in support of their demands, this protection is not so absolute as
to deny self-help by employers when legitimate interests of
employees and employers collide. Conflict may arise, for example,
between the right to strike and the interest of small employers in
preserving multiemployer bargaining. . . . The ultimate problem is
the balancing of the conflicting legitimate interests. The function
of striking that balance to effectuate national labor policy is
often a difficult and delicate responsibility, which the Congress
committed primarily to the National Labor Relations Board, subject
to limited judicial review."
Buffalo Linen, 353 U. S. 87,
353 U. S.
96.
This is especially so where integrity of a multiemployer
bargaining unit is the principal factor to be considered, since
"the compelling conclusion is that Congress . . . 'intended to
leave to the Board's specialized judgment to inevitable questions
concerning multiemployer bargaining bound to arise in the
future.'"
Ibid. I think the Court now repudiates this decision
and assumes for itself the
"delicate task . . . of weighing the interests of employees in
concerted activity against the interest of the employer in
operating his business in a particular manner."
Erie Resistor, 373 U. S. 221,
373 U. S. 229.
I would adhere to our prior cases and affirm the decision of the
Board.