ABA Section of Labor and Employment Law Committee on the Development of the Law Under the

National Labor Relations Act Mid-Winter Meeting 2006

Rancho Mirage, CA ________________________________________________________________________

“If I Only Had a Heart. . . .” How Many of My Employees Would I Lock Out?

Sociedad Espanola de Auxilio Mutuo v. Benficencia de P.R.,

342 NLRB No. 40 (July 13, 2004);

Allen Storage & Moving Co., Inc., 342 NLRB No. 44 (July 16, 2004);

Local 15, International Brotherhood of Electrical Workers, AFL-CIO v. National Labor Relations Board and Midwest Generation, EME, LLC,

429 F.3d 651 (7th Cir. 2005), reversing sub. nom

Midwest Generation EME, LLC, 343 NLRB No. 12 (Sept. 30, 2004);

and

Bunting Bearings Corp., 343 NLRB No. 65 (Oct. 29, 2004).

The Board’s Heartless Attack on the Fundamental Section 7 Right to Engage

in Protected Concerted Activity

Labor’s Perspective

ABA Section of Labor and Employment Law

Melinda S. Hensel LOCAL 150 LEGAL DEPARTMENT

IUOE, Local 150, AFL-CIO 6140 Joliet Road

Countryside, IL 60525 708/579-6663

708/588-1647 (fax)

INTRODUCTION

When Congress passed the Wagner Act in 1935, it declared as the United States policy:

Experience has proved that protection by law of the right of employees to organize and bargain collectively safeguards commerce from injury, impairment, or interruption, and promotes the flow of commerce by removing certain recognized sources of industrial strife and unrest, by encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours or other working conditions, and by restoring equality of bargaining power between employers and employees.1

Section 7 of the National Labor Relations Act (“NLRA” or the “Act”), defines the rights

fundamental to employees’ rights to organize and bargain collectively as:

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. . . 2

In support of Section 7 rights, Section 8(a)(1) of the NLRA makes it an unfair labor practice

for an employer to interfere with employees' rights that are protected by Section 7 of the NLRA,

which includes the right to "engage in . . . activities for the purpose of collective bargaining." 29

U.S.C. § 157.3 Section 8(a)(3) of the NLRA further states it is an unfair labor practice for an

employer “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. . .” 4 Section

13 of the NLRA expressly states:5

Right to Strike Preserved Nothing in this subchapter, except as specifically provided for herein, shall be

construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.

As the NLRA makes clear, employees have a fundamental right to organize and bargain

collectively, and to engage in concerted activity under protection of the law without fear of

discrimination by an employer. The NLRA provides that protected concerted activity includes

1 29 U.S.C. § 151. 2 29 U.S.C. § 157. 3

29 U.S.C. § 158(a)(1). 4 29 U.S.C. § 158(a)(3). 5 29 U.S.C. § 163

1

the right to join a labor organization, and to engage in concerted activity, which including the

right to strike, to achieve collective bargaining goals.6

An employee’s right to bargain collectively is not absolute.7 The NLRA of course also

confers certain rights on employers in collective bargaining. What is absolute, however, is the

prohibition against discrimination by an employer against employees that impermissibly impacts

the employees’ right to engage in protected concerted activity. Thus, except in the most unusual

or exigent of circumstances necessary to protect against extreme business loss or public hazard,

the Act requires that competing rights of the employee and employer be balanced against the

other.8 When such circumstances arise, the needs of the employer may legitimately be balanced

against the Section 7 rights of the employee.9

The dichotomy between employees’ Section 7 rights and an employer’s right to operate its

business becomes most apparent in the context of an employer lockout of employees during

collective bargaining. It has long been recognized that just as employees have the right to strike

in order to advance their collective bargaining goals, employers also have the right to lock out

employees to advance a legitimate employer bargaining position, or to remedy other concerns

including protection against loss of profit, continued operations, public hazard, or other unusual

circumstances. The caveat to the employer right, of course, has been that the lockout must be

structured so as not to be inherently destructive to protected Section 7 rights, or accompanied by

unfair labor practices that tend to discourage membership in a labor organization.10

Given the stated purposes and policies of the NLRA, it is impossible to conceive of a

scenario in which Congress intended that the National Labor Relations Board (“NLRB” or the

“Board”) should become an advocate for employers to discriminate against employees by

targeting them for lock out because of protected Section 7 activity. Unfortunately, the NLRB

has undertaken to do just that in recent decisions concerning the lockout of employees during

6 29 U.S.C. Sections 157, 163. 7 American Brake Shoe Company, Ramapo Ajax Division, 116 NLRB 820 (1958). 8 Quaker State Oil Refining Corp, 121 NRLB 334 (1958); Laclede Gas Co., 187 NLRB 243, 243-44 (1970); Bali

Blinds Midwest, 292 NLRB 243, 246-47 (1988). 9 American Brake Shoe Company, Ramapo Ajax Division, 116 NLRB 820 (1958). 10 NLRB v. Great DaneTrailers, 388 U.S. 26 (1967).

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collective bargaining.11 The Board’s decisions in Sociedad Espanola de Auxilio Mutuo, Midwest

Generation and Bunting Bearings Corp. are an extreme derogation of employees’ fundamental

right to engage in protected concerted activity under Section 7, and directly contradict the

purposes and policies of the Act.

This paper examines recent developments in the law of partial lockouts, and argues for a

return to long-established standards to protect the integrity of the employee right to engage in

protected concerted activity. Congressional intent, and Board precedent all support continued

adherence to established law.

A. A BRIEF HISTORY OF THE LAW OF LOCKOUTS

Although far from all of the lockout cases that have been considered by the NLRB over the

years, the following summary briefs cases and concepts necessary to introduce and analyze the

four primary cases at issue in this paper.

1. The NLRB’s View of Lockouts Through 1965

From the inception of the Wagner Act, the NLRB has applied the term “lockout” to

varied situations. However, the simplest definition of a lockout is the “withholding of

employment by an employer from his employees for the purpose of resisting their demands or

gaining a concession from them.”12 From the early days the NLRB has held that lockouts made

for unlawful purposes violated the Act.13 The Board initially distinguished between unlawful

lockouts made for offensive purposes, and lawful lockouts made for defensive purposes.14 The

NLRB held that lockouts that interfere with employees’ exercise of Section 7 rights are

11 Sociedad Espanola de Auxilio Mutuo v. Benficencia de P.R., 342 NLRB No. 40 (July 13, 2004); Midwest

Generation EME, LLC, 343 NLRB No. 12 (Sept. 30, 2004); Bunting Bearings Corp., 343 NLRB No. 65 (Oct. 29, 2004).

12 Developing Labor Law, 4th Ed., p. 1513, Hardin and Higgins, Jr., Eds. (2001). 13 Flora Construction Co., 132 NLRB 776 (1961), enf’d 311 F.2d 310 (10th Cir. 1962) (lockout unlawful to stop

organizational activity); North Country Motors, Ltd., 133 NLRB 1479 (1961) (lockout unlawful to stop organizational activity and followed by anti-union comments).

14 Link-Belt Co., 26 NLRB 227 (1940) (lockout lawful to protect property from violence expected at sit-down strike); Hobbs, Wall & Co., 30 NLRB 1027 (1941) (lockout lawful to counteract effect of the picket line on raw material delivery); Duluth Bottling Ass’n, 48 NLRB 1335 (1943) (lockout lawful to prevent spoilage of products); Internat’l Shoe Co., 93 NLRB 907 (1951) (lockout lawful to negate harm by intermittent “quickie” strikes).

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unlawful.15 The NLRB also held that lockouts made in furtherance of an unfair labor practice to

be unlawful, but distinguished cases in which unfair labor practices occurred only coincidental to

the lockout.16 The NLRB also deemed illegal lockouts intended to stave off the ordinary and

expected consequences of a strike.17 Fear of the effect of sudden strikes was likewise an

impermissible motivation to initiate a lockout.18 The NLRB also consistently held that a lockout

used to strengthen the employer’s bargaining position violated Sections 8(a)(1), (3) and (5) of the

Act.19

2. The Lockout Becomes a Legitimate Economic Weapon of the Employer

American Ship Building Co. v. NLRB

In 1965, Supreme Court ruled in American Ship Building Co. v. NLRB that the lockout is

a legitimate economic weapon of the employer, within certain parameters.20 The Court reasoned

that a lockout is not “one of those acts which are demonstrably so destructive of collective

bargaining that the Board need not inquire into employer motivation. . . .”21 The Court found

that a lockout with the sole purpose of bringing economic pressure to bear in support of [the

employer’s] legitimate bargaining position does not violate Section 8(a)(1) because it is not

inconsistent with the right to strike or to bargain collectively.22 Absent proof of union animus by

15 Guard Serv., Inc., 134 NLRB 1753 (1961) (threat to close if Union selected is unlawful); NLRB v. Jay Co., 227

F.2d 416 (9th Cir. 1954) (pressure to accept employer’s favored Union unlawful); Perry Coal Co., 125 NLRB 1256 (1959), enf’d as modified 284 F.2d 910 (7th Cir. 1961), cert. denied sub nom Peabody Coal Co. v. NLRB, 366 U.S. 949 (1961) (to interfere with free choice to join or not join a Union unlawful); Joseph Weinstein Electric Corp., 152 NLRB 25 (1965) (intended to undermine support for the Union is unlawful).

16 Somerset Classics, Inc., 90 NLRB 1676 (1950), enforcement denied 193 F.2d 56 (2nd Cir. 1952), cert. denied 344

U.S. 816 (1952) (lockout to discourage from joining a Union, surveillance and interrogation unlawful); Ralph’s Wonder, Inc., 127 NLRB 1280 (1960); Eva-ay Dress Mfg. Co., 88 NLRB 361 (1950), enf’d 191 F.2d 850 (5th Cir. 1951) (lockout in furtherance of discriminatory layoffs and reinstatement unlawful); Hess Oil & Chem. Corp., 167 NLRB 115 (1967), enf’d 415 F.2d 440 (5th Cir. 1969), cert. denied sub nom, Oil Workers v. NLRB, 397 U.S. 916 (1970) (lockout legal because not in support of illegal bargaining position).

17 American Brake Shoe Company, Ramapo Ajax Division, 116 NLRB 820 (1956) (Absent special circumstances, an employer may not threaten to or lock out its employees in aid of its bargaining position because the employer fears the ordinary consequences of a strike. A lockout is permissible to safeguard against unusual operation problems or hazards or economic loss when there is reasonable ground to believe that a strike is threatened or imminent. The burden to justify the lockout on those grounds rests with the Employer).

18 Quaker State Oil Refining Corporation, 121 NLRB 334 (1958). 19 Hercules Powder Co., 127 NLRB 333 (1960), vacated 297 F.2d 424, 5th Cir. 1961). 20 American Ship Building Co. v. NLRB, 380 U.S. 300 (1965). 21 Id. at 309. 22 Id. at 310-311.

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the employer, the intent to pressure economically the Union to modify its demands is not a

violation of Section 8(a)(1) or (3) of the Act. 23 Section 8(a)(3) is “construed . . . to leave

unscathed a wide range of employer actions taken to serve legitimate business interests in some

significant fashion, even though the act committed may tend to discourage union membership.24

The Court qualified its rule, stating “[i]n some cases, it may be that the employer’s conduct

carries with it an inference of unlawful intention so compelling that it is justifiable to disbelieve

the employer’s protestations of innocent purpose.”25 Where the employer’s conduct carries no

such inference, the employee interest in concerted activity must be weighed against the employer

interest to operate the business in a particular manner.26 Finally, the Court found that the Board’s

decisions concerning lockouts as an economic weapon improperly put it in the role of arbiter to

determine the proper standard for justified versus abusive economic weapons, amounting to the

Board’s engagement in substantive aspects of bargaining not intended by Congress.27 The Court

specifically did not determine what the outcome might be had the employer temporarily replaced

the locked out employees. 28

3. The Standard to Evaluate Harm to the Collective Bargaining Process is Established

NLRB v. Great Dane Trailers Two years later, in NLRB v. Great Dane Trailers, the Supreme Court set forth a two-

prong litmus test by which to measure discriminatory conduct. 29 There the Court found that

that it was a violation of Section 8(a)(3) when the employer refused to pay strikers vacation

benefits under an expired contract while intending to pay those same benefits to others that had

ceased striking. The Court stated that the Employer’s conduct was discrimination in its simplest

form, as it distinguished between employees only on the basis of participation in protected

activity, and “…there can be no doubt but that the discrimination was capable of discouraging

membership in a labor organization within the meaning of the statute. Discouraging membership

23 Id. 24 Id. at 310, citing NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 347 (1938). 25 Id. at 311-12, citing Radio Officers’ Union v. NLRB, 347 U.S. 17, 43 (1954); NLRB v. Erie Resistor Corp., 373

U.S. 221 (1963). 26 Id. 27 Id. at 317-18. 28 Id. at 309. 29 NLRB v. Great Dane Trailers, Inc. 388 U.S. 26 (1967).

5

in a labor organization ‘includes discouraging participation in concerted activities. . . such as a

legitimate strike.’” 30 The Court thus set forth the following rule by which to gauge harm to

Section 7 rights (emphasis in original): 31

First, if it can reasonably be concluded that the employer’s discriminatory conduct was “inherently destructive” of important employee rights, no proof of an antiunion motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations. Second, if the adverse effect of the discriminatory conduct on employee rights is “comparatively slight,” an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct. Thus, in either situation, once it has been proved that the employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is upon the employer to establish that it was motivated by legitimate objectives since proof of motivation is more accessible to him.

The Supreme Court also set forth the requirement that the employer’s stated business

justification be proven by substantial evidence, for it is not the function of judicial review to

“speculate upon what might have motivated the company.32 The principles enunciated in Great

Dane remain the law today.

B. THE DECISIONS AT ISSUE

1. The Board Grossly Expands the Supreme Court’s Decision in American Ship Building Co.

Sociedad Espanola de Auxilio Mutuo v. Benficencia de P.R.

The NLRB’s first lockout decision was handed down in Sociedad Espanola de Auxilio

Mutuo v. Benficencia de P.R.33 In the wake of a rash of unfair labor practices claimed by the

Union, including discriminatory termination, bad faith bargaining, and the Employer’s

solicitation of signatures for a decertification petition, the Union notified the Employer that it

intended to strike for unfair labor practices from December 22-24, 1998 and December 31, 1998

to January 2, 1999. In response, Employer decided to conduct a lockout between the strike dates.

The Union then canceled the first planned strike and the Employer moved the lockout date up to

30 Id. at 32, citing NLRB v. Erie Resistor Corp., 373 U.S. 221, 233 (1963). 31 Id. at 34. 32 Id. at *35. 33 Sociedad Espanola de Auxilio Mutuo v. Benficencia de P.R., 342 NLRB No. 40 (July 13, 2004) (slip op.).

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the first day of the canceled strike. When two employees attempted to report for work on the

first day of the lockout, the Employer’s Human Resources Director told them “the ‘reprisal’ was

not against the employees, but against the Union.”34

The NLRB ruled in favor of the Employer, finding under the “comparatively slight” prong of

Great Dane that the Employer advanced a legitimate business purpose to justify the lockout.35

The Board accepted the Employer’s stated primary concern of continuity of patient care,

concluding that it was the “operative purpose” and the motivation for the lockout, not union

animus, and provided the legitimate and substantial justification required by Great Dane.36 It

was enough that the Employer was “reasonably concerned” that it would not be able to find the

requisite personnel; the Board required no evidence beyond verbal testimony to establish the

concern was legitimate. The Board avoided a union animus finding by refusing to take the

Human Resource Director’s statement as discriminatory. The Board concluded that it was the

Union’s threat to strike that caused the lockout, and it was reasonable and truthful to blame the

Union for the lockout.

Member Liebman dissented that it was the Employer’s burden to establish with evidence a

legitimate and substantial business justification for the lockout, and it did not meet that burden.37

The dissent accused the Board of giving the Employer a “free pass” by accepting the Employer’s

stated business justification for the lockout without requiring proof of its authenticity because it

is insufficient for an employer to merely articulate a plausible reason for a lockout.38 In light of

the other unfair labor practices affirmed by the Board, together with the Human Resource

Director’s statement that the strike was in reprisal against the Union, it established the real

reason was Union animus.39 Finally, the dissent pointed out that the Employer’s use of the term

“reprisal” against the Union for its threat to strike is taken to mean a retaliatory act, making the

34 Id. at *14 35 Id. at *13-16. 36 Id. at *22. 37 Id. at *31 (dissenting opinion). 38 Id. at *33, citing ConAgra, Inc., 321 NLRB 944, 963 (1996), enf. denied on other grounds, 117 F.3d 1435 (D.C.

Cir. 1997) (justification rejected where no evidence adduced to substantiate stated concern). 39 Id. at *34-35.

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lockout not a defensive measure, but one to punish the Union for a strike threat, in violation of

the Act. 40

2. The Board Briefly Exhibits a Collective Heart in the Avalanche of Lawful Discriminatory Lockouts

Allen Storage & Moving Company, Inc.

In Allen Storage & Moving Company, Inc, the NLRB found that the Employer violated

Sections 8(a)(1) and (3) when it locked employees out in order to force them to accept an

unlawful bargaining objective.41 The Employer unilaterally and without notice to the Union

terminated employees’ life insurance policies in March 2001 and did not advise the Union it had

done so until July 2001. In May 2001 the parties commenced bargaining for a new contract, but

there were disagreements over the life insurance, pension increases and changes in the method of

employee payment. The Union commenced a strike that lasted for five weeks. During the strike,

one employee, Jennings, did not strike and continued to work. The Union made an unconditional

offer to return to work, and the Employer agreed to phase employees back in based on seniority.

The employer suddenly repudiated its agreement and locked employees out, citing concerns for

labor stability and its desire to reach an agreement.

In December 2001 an employee approached the president about returning to work. He was

told he could do so only if he would forfeit union representation and become an owner/operator.

The Union then recommenced picketing for three months until the Employer sent a letter

advising employees to attend an orientation session on March 22 and their failure to do so would

result in termination. At the orientation, employees were, among other things, made to fill out

forms for a new lesser life insurance policy. The Union was informed that the lockout would be

reinstated four days hence if the Union did not accede to the Employer’s bargaining demands

over life insurance and pay percentage scales. Non-striking employee Jennings continued to

work throughout the lockout and strike. 42

In finding the violations of Sections 8(a)(1) and (3), the Administrative Law Judge (“ALJ”)

held that the lockout was illegal because it was fueled by discriminatory motivation. The

employer evidenced its unlawful motive by its continuous employment of Steven Jennings, the 40 Id. at *35, n3. 41 Allen Storage & Moving Company, Inc., 342 NLRB No. 44 (July 16, 2004) (slip op.). 42 Allen Storage & Moving Company, Inc., 342 NLRB No. 44 (July 16, 2004) (slip op.).

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non-striking employee. Disparate treatment is evidence of discriminatory motive.43 In addition,

the ALJ relied on the statements made to the employee about becoming an owner/operator to

return to work, and that the Employer would “beat [the strike].” Further, the sole purpose of the

lockout was not to pressure the Union to accept the Employer’s legitimate bargaining position,

but to force it to accept the unlawful life insurance proposal.44 Because the Employer’s proposal

would require the Union to accept unlawful conduct to end the lockout, the lockout could not be

lawful under American Ship Building Co. 45

The Board affirmed the ALJ’s decision, finding that the lockout was discriminatory under

American Ship Building Co. because the sole purpose was not to exert economic pressure but

also to force the Union to accept the unlawful life insurance proposal, and finding disparate

treatment of employee Jennings relevant to the unlawful motivation finding. The Board

addressed little of the other evidence considered by the ALJ in its decision, other than to state

that two Members considered evidence related to holiday pay to replacements and the

Employer’s conduct at the orientation meeting. The Board affirmatively stated that two

Members did not rely on the statement of the Employer that he would beat the strike.46

3. The NLRB Loses its Heart (and Mind)

Local 15, International Brotherhood of Electrical Workers, AFL-CIO v. National Labor Relations Board and Midwest Generation, EME, LLC

a. The Board Decision In Midwest Generation EME, LLC, the Board found no violation of Sections 8(a)(1) and (3)

where the Employer locked out employees based upon their Union support.47 Amid

unsuccessful contract negotiations the Union and bargaining unit of approximately 1,150

employees commenced a strike against Midwest with all but eight employees who did not strike

and continued to work. The Board coined the eight employees “non-strikers.” Over the next two

months, an additional 47 employees left the strike and returned to work. The Board coined these

employees “crossovers.” Just prior to the Union’s unconditional offer to return to work, six

more employees expressed their intention to the Employer to also return to work. Those 43 Id. at *66, citing McGwier Co., 204 NLRB 492, 496 (1973); O’Daniel Oldsmobile, 179 NLRB 398, 401 (1969). 44 Id. at *64, citing American Ship Building Co., 380 U.S. 300, 318 (1965). 45 Id. at *75-77, citing American Ship Building Co., 380 U.S. 300, 318 (1965); Liquor Wholesalers, 292 NLRB

1234, fn3 (1989), enf’d 924 F.2d 1078, 1085 (D.C. Cir. 1991). 46 Allen Storage & Moving Company, Inc., 342 NLRB No. 44, at 5 (July 16, 2004) (slip op.). 47 Midwest Generation, EME, LLC, 343 NLRB No. 12 (September 30, 2004) (slip op.)

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employees joined the “crossover” group. Four days after the Union’s unconditional offer to

return to work, the Employer gave the Union notice of a partial lockout – employees that

remained on the picket line as of the unconditional offer to return would not be permitted to

return to work until a new contract was signed. The partial lockout continued for six weeks

when a new agreement was ratified.

The Board held in favor of the Employer, finding that the record evidence established that the

lockout was for the sole purpose of exerting economic pressure in support of the Employer’s

legitimate bargaining position, in accordance with American Ship Building Co.48 Because the

lockout was in furtherance of a legitimate bargaining position, the harm to employees’ Section 7

rights was “comparatively slight;” thus, an affirmative showing of Union animus was required to

find a violation. The sole evidence relied on by Board to make the motive finding was a letter

sent to employees notifying them that the lockout would continue until an agreement was

reached.49 Because the Employer consistently expressed this as the reason for the lockout, the

Board said there there was no basis to conclude otherwise. 50

The Board found that partial lockouts are legal when justified by operational needs and

without regard to union membership status, and asserted that the lockout was unrelated to Union

affiliation because the Employer accepted other Union members back to work.51 Accepting

some Union members back to work but not others was justified because those accepted were

taken back to meet operational needs.52 The Board found no evidence of union animus in the

terms of the lockout, referencing the stipulated fact that the parties had bargained in good faith.

The Board found that under Great Dane, some discrimination is legal if there is a substantial and

legitimate justification for it. The majority ruled that the Employer could make a “lawful

distinction between those employees who eschewed the strike weapon during the strike and those

who stayed on strike until the end of the strike” because the Employer no longer believed it was

48 Id. at *24, citing American Ship Building, 380 U.S. 300, 309 (1965). 49

Id. at *12, citing Ancor Concepts, Inc., 323 NLRB 742, 744 (1997). 50

Midwest Generation at *14, fn. 6, citing Black Entertainment Television, 324 NLRB 1161 (1997) (vacillation in consistent account of actions permits an inference that the real reason for the conduct is not among those asserted.

51 Id. at *14-15, citing Bali Blinds Midwest, 292 NLRB 243, 246-47 (1988); Laclede Gas Co., 187 NLRB 243, 243-

44 (1970). 52

Id. at *15-16, citing Harter Equipment, 280 NLRB at 599.

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necessary to pressure the crossovers and non-strikers. It did not matter what the reason was for

the crossovers to return or the non-strikers to stay, only that the Employer believed it was no

longer necessary to exert pressure on them. 53

The Board also rejected the contention that the timing of the lockout demonstrated Union

animus. The majority found no evidence that the Employer delayed implementation of the

lockout until it could process six crossover employees back to work, and refused to make such a

finding based on mere speculation because “[a]lthough the Board ‘is permitted to draw

reasonable inferences, and to choose between fairly conflicting views of the evidence[,] ‘it

cannot rely on suspicion, surmise, implications, or plainly incredible evidence.’” 54

Member Walsh dissented, arguing that although the majority conceded that discrimination

had occurred within the meaning of Great Dane, it failed to require the Employer to provide

evidence for its asserted justification to exert economic pressure. The Employer agreed it had

maintained operations during the strike with only “supervisory personnel, contractors, and some

temporary employees.” It was therefore improper for the majority to, sua sponte concoct a post

hoc operational rationalization for the Employer, when the law requires the Respondent to prove

a legitimate and substantial business justification.55 Apart from the Employer’s bald statement

that its business justification for the lockout was to pressure the strikers economically, it offered

no additional evidence of its justification for the disparate treatment. The disparate treatment

had the effect of undermining adherence to the Union because it demonstrated the advantage of

refraining from Section 7 activity.56 Finally, the dissent highlights that at the time of the partial

lockout, there was no distinction whatsoever between the crossovers and those who struck to the

end because all had eschewed the strike weapon with the unconditional offer to return to work.

The Employer could just as easily have inferred that the strikers had abandoned the Union’s

bargaining position. Instead, the Employer sanctioned them for their protected Section 7

activity, in violation of the Act.

53

Id. at *20. 54

Id. at *23, fn. 15, citing Concepts & Designs, Inc. v. NLRB, 101 F.3d 1243, 1245 (8th Cir. 1996). 55 Id. at *26-28, citing Inland Steel Co., 257 NLRB 65, 68 (1981) (“the employer alone is responsible for its conduct

and it alone bears the burden of explaining the motivation for its actions”), enf’d 681 F.2d 819 (7th Cir. 1982). 56 Id. at *32, citing McGwier Co., 204 NLRB 492, 496 (1973); and O’Daniel Oldsmobile, Inc., 179 NLRB 398, 402

(1969).

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b. The Seventh Circuit Decision

The Seventh Circuit reversed and remanded to the Board, by and large adopting the

reasoning of Member Liebman’s dissent.57 First, the Court found that the Employer had not

offered a legitimate business rationale for the partial lockout, noting that the Employer stipulated

that it had successfully maintained operations with supervisors, contractors, and temporary

workers, and to claim that less than two percent of the workforce was vital to maintain business

operations “stretches to the bounds of credulity.” 58 Further, no extreme exigencies existed to

justify a partial lockout.59

The Court rejected the Board’s rationale that the crossover and non-striking employees had

abandoned the Union’s bargaining position as unsubstantiated with any evidence, noting that all

the employees had abandoned the economic strike by offering to return to work. Even if

Midwest could prove that the crossovers had abandoned the Union’s bargaining position, it still

was not at liberty to discriminate amongst employees because it anticipates that they will honor a

picket line or otherwise engage in protected activity.60 The Court found that Midwest acted with

Union animus because it did not lock out Union member employees blindly, but distinguished

among them based on the length of strike activity. The justifications set forth by Midwest for its

actions support a finding that the lockout was used in retribution to discourage employees from

exercising their Section 7 rights. The Court finally reasoned that a partial lockout requires

justification beyond economic effectiveness. It would validate all partial lockouts if they could

be avoided by employees agreeing to employer demands, rendering the requirement of a

legitimate and substantial business justification ineffective.61

57 Local 15, International Brotherhood of Electrical Workers, AFL-CIO v. NLRB, 429 F.3d 651 (7th Cir. 2005),

rehearing denied en banc, 2006 US App. LEXIS 497. 58 Id. at 658. 59 Id. at 658, citing General Portland, Inc., 283 NLRB 826 (1987); Bali Blinds Midwest, 292 NLRB 243 (1988);

Laclede Gas Co., 187 NLRB 243 (1970). 60 Id. at 660, citing National Fabricators v. NLRB, 903 F.2d 396, 400 (5th Cir. 1990); Thrift Drug Co., 204 NLRB

41, 43 (1973) (Lockouts are not all protected. . . . The Seventh Circuit in Inland Trucking v. NLRB, 440 F.2d 562 (1971), aff’g 179 NLRB 350, cert. denied 404 U.S. 858, 92 S. Ct. 106, L. Ed. 2d 100, held that an employer violated Section 8(a)(1) and (3) by locking out its employees and continuing operations with the use of new hires. The American Ship Building rule does not give the employer license to pick and choose among its employees and suspend those whose protected picket line activities are most damaging to it. The mere selection of such an employee from among all those in the unit for suspension is per se discriminatory).

61 Id. at 661, citing NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S. Ct. 1792, 18 L. Ed. 2d 1027 (1967); 29 U.S.C. Sections 157, 158(a)(1), (3).

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4. Heartless Discrimination Continues

Bunting Bearings Corp. and Paper, Allied, Industrial, Chemical and Energy, International Union, 343 NLRB No. 64 (Oct. 29, 2004).

In Bunting Bearings Corp., the Board held that a partial lockout of only Union member

employees did not violate Sections 8(a)(1) and (3) of the Act.62 There, during contract

negotiations the Employer locked out its non-probationary Union employees while maintaining

operations with probationary non-Union employees in an attempt to force the Union to accept the

Employer’s bargaining position. The Board relied on NLRB v. Brown Food Store63 and Harter

Equipment, Inc. 64 to support its ruling. The Board found there was nothing “inherently

destructive” to employees’ Section 7 rights in the employer’s effort to remain in operation during

the lockout using probationary non-Union employees.

The Board found that the partial lockout was established to put economic pressure on the

Union and the use of probationary non-Union employees to maintain operations qualified as a

legitimate business objective. It reasoned that when a lockout is in furtherance of a legitimate

bargaining position, Harter requires the Board to find the lockout has only a “comparatively

slight” adverse effect on protected activities, absent specific proof of anti-union motivation.65

The Board further held that the Employer was “privileged” to put pressure on the Union where it

would be most effective.66 The Board distinguished its decision in Allen Storage and Moving

Co. from the present case, citing the existence of evidence independent of the lockout that

established union animus.67 The Board reasoned that Union animus was not demonstrated by the

lockout of only non-probationary employees – the Employer only distinguished between

probationary and non-probationary employees.68

62 Bunting Bearings Corp. and Paper, Allied, Industrial, Chemical and Energy, International Union, 343 NLRB No.

64 (Oct. 29, 2004) (slip op.). 63 NLRB v. Brown Food Store, 380 U.S. 278 (1965) (use of temporary replacements in lockout by multi-employer

unit after one unit struck is not an unfair labor practice because it would negate the lockout right by allowing the struck employer the upper economic hand with the right to hire temporary replacements).

64 Harter Equipment, Inc., 280 NLRB 597 (1986), enf’d sub. nom Local 825 IUOE v. NLRB, 829 F.3d 458 (3rd Cir. 1987) (Board expanded the Supreme Court’s decision in NLRB v. Brown Food Store to permit a single employer unit to hire temporary replacements to survive lockout in support of a legitimate bargaining position).

65 Bunting Bearings Corp., 343 NLRB No. 64 at *10-11. 66 Id. at *13, citing Midwest Generation, 343 NLRB No. 12 (September 30, 2004) (slip op.). 67 Id. at *15, citing Allen Moving and Storage, 342 NLRB No. 44 (July 16, 2004). 68 Id. at *17.

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The Board also found that the probationary employees had a lesser interest in the strike

because they were not Union members, much as the crossover employees in Midwest were

deemed already to have eschewed the Union’s bargaining position when they returned to work in

advance of the strike’s end. 69 There was no record evidence to support this finding, nor did the

Employer advance this argument. The Board concluded that, “as a general rule an employer

violates neither 8(a)(1) nor 8(a)(3) when, after a bargaining impasse has been reached, it applies

economic pressure on its employees to accept its bargaining position by locking them out and

continuing business operations with temporary employees.” 70

The dissent argued that the real issue was the discriminatory manner in which the Employer

implemented its lockout by targeting only Union member employees. Member Liebman

observed that under American Ship Building, the legality of a lockout turns on the Employer’s

motive, and if certain employees are targeted with the intent of discouraging union membership,

the lockout violates 8(a)(3).71 If disparate treatment exists, it may be evidence of a

discriminatory motive, and if a lawful proffered motive is demonstrably false, an unlawful

reason may be inferred.72 Furthermore, the Board has long held that the presence of a lawful

motive, together with an unlawful motive, does not prevent finding a lockout illegal.73 To

properly determination whether the motive offered is legal, all of the surrounding circumstances

must be carefully examined.74

The dissent found the record to be replete with evidence of union animus. The Employer

conceded that it unlawfully terminated employee McNett for union activity. Additionally, the

Employer unlawfully implemented the lockout in advance of the expiration of the collective

bargaining agreement, threatened to fire employees who refused to cross the picket line, and

videotaped employees on the picket line. Finally, whatever the Employer’s stated business

motivation, the Employer’s retention of only its least experienced and least knowledgeable non-

69 Id. at *22, citing Midwest Generation, 343 NLRB No. 12 (September 30, 2004) (slip op.). 70 Id. at *6-7, citing Harter Equipment, Inc., 280 NLRB 597 (1986) enf’d sub. nom Local 825, IUOE v. NLRB 829

F.3d 458 (3d Cir. 1987). 71 Id., citing Tidewater Construction Corp., 341 NLRB No. 55 at 3 (2004), on remand from 294 F.3d 186 (D.C. Cir.

2002); International Paper Co. v. NLRB, 115 F.3d 1045, 1048 (1997). 72 Id., citing Allen Storage & Moving Co., 342 NLRB No. 44 (2004). 73 Id. at *32, citing Movers & Warehousemen’s Ass’n of Washington, D.C., 224 NLRB 356, 366 (1976), enf’d 550

F.2d 962 (4th Cir. 1977), cert. denied 434 U.S. 826 (1977); Conagra, Inc., 321 NLRB 944, 963, fn. 34 (1996), enf. denied on other grounds 117 F.3d 1435 (D.C. Cir. 1997).

74 Id. at *35, citing Darling & Co., 171 NLRB 801, 802-03 (1968).

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Union employees belies its claimed goal to maintain operations with a fraction of the in-house

work force. 75

The dissent criticized the majority for offering its own justification – not found in the record

– for the Employer’s action, that probationary employees had fewer rights under the collective

bargaining agreement than non-probationary employees, and it was therefore appropriate to

pressure only those employees. To maintain the majority’s logic, it would always be permissible

for an employer to lock out only Union members, or even more selectively, the employer could

lawfully lock out only the Union leaders and strongest supporters to exert the greatest economic

pressure. Either measure, in the dissent’s view, amounts to unlawful discrimination designed to

discourage membership in a labor organization and the exercise of protected Section 7 activity.76

75 Id. at *38. 76 Id. at *41.

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C. ANALYSIS

Not all lockouts are created equal. This is so even when viewed with the Supreme Court’s

general edict that a lockout, when motivated solely by an intent to put economic pressure on a

Union in support of the employer’s legitimate bargaining position, has only a comparatively

slight impact on employees’ Section 7 rights. A lockout can, depending either on its purpose, or

in the way it is implemented be inherently destructive to Section 7 rights, and therefore be an

independent violation of Section 8(a)(3). The Board’s decisions in Sociedad, Allen, Midwest

Generation, and Bunting Bearings Corp., however, suggest that the NLRB has adopted a policy

that a lockout, however structured, can never by itself establish a violation of Section 8(a)(3), but

always requires an independent underlying or coincidental unfair labor practice to establish a

violation. This standard ignores the rampantly discriminatory nature of some lockouts, and the

resulting harm to employee protected rights. These recent decisions also demonstrate that the

Board has ceased to balance the harm to Section 7 protected rights with an employer’s asserted

legitimate business justification for its conduct to the benefit of employers. Finally, the Board

has impermissibly inserted itself into the role of advocate on behalf of employers, creating

justifications for employer actions that were never advanced by the employer. To continue to

promote these practices and polices will result in the total destruction of employees’ Section 7

rights to engage in protected concerted activities guaranteed by the Act.

1. The Board Has Failed to Consider that the Circumstances of a Lockout Alone May Establish Inherently Destructive Conduct.

To assess the legality of a lockout, the rules established in American Ship Building Co. and

Great Dane Trailers must be read together: if the sole purpose of the lockout is to advance the

employer’s legitimate bargaining position, the harm to protected activities is considered

“comparatively slight,” and there must be evidence of union animus that would otherwise render

the lockout illegal when balanced with the Employer’s asserted business justification for the

conduct.77 However, if a purpose of the lockout is not to advance a legitimate bargaining

position, it must be determined if the conduct is inherently destructive to protected rights, and if

so, no Union animus need be shown; if the impact is deemed comparatively slight, then evidence

of union animus that would render the conduct unlawful when balanced with the Employer’s

asserted business justification for the conduct must be shown to establish an unfair labor 77 American Ship Building Co. v. NLRB, supra.

16

practice.78 The Board’s recent decisions find that lockouts generally have only a comparatively

slight impact on protected rights absent specific proof of anti-union animus whatever the stated

purpose and however structured.79 For the Board to hold that all lockouts have a comparatively

slight impact on protected rights ignores the holding of American Ship Building Co. where the

Supreme Court ruled only that lockouts with the sole purpose to advance a legitimate bargaining

position have comparatively slight harm on protected rights, and ignores the test advanced in

Great Dane to gauge the extent of the conduct and the balancing of employee and employer

interests. In cases where the lockout conduct is facially discriminatory because it is either in

retaliation against protected activity, or distinguishes between employees that have engaged in

protected activity, the conduct should be examined first under the “inherently destructive”

standard.

Sociedad is just such a case. In Sociedad, the Board applied the “comparatively slight” test

to the lockout, finding that “a lockout, standing alone, is not inherently destructive of employee

rights,” and it must be analyzed under the “comparatively slight” prong of Great Dane.80

However, the lockout in Sociedad was not economically motivated, and there was thus no

requirement that it be evaluated under the “comparatively slight” test. While finding that the

lockout was at least in part reasonably motivated by the Union’s threat to strike, the Board

refused to find a violation because it did not credit the independent unfair labor practice charge

to establish union animus – the human resource director’s comment that the lockout was “in

reprisal” for the Union’s threat to strike. The Board distorted the human resource director’s

status to reach this result. The decision is unfathomable given that the Board agreed that the

lockout was prompted by the Union’s protected right to threaten a strike; in light of the plethora

of other unfair labor practices evidencing Union animus the Board found, including the

discriminatory termination of a Union leader, and improper solicitation of signatures for a

decertification petition. It would seem more appropriate when the conclusion is reached that a

lockout is not economically motivated but in response to activity protected by Section 7, and thus

facially discriminatory to examine first the conduct under the “inherently destructive” test of

Great Dane.

78 NLRB v. Great Dane Trailers,supra. 79 Bunting Bearings Corp. supra at *10-11. 80 Sociedad Espanola de Auxilio Mutuo y Beneficencia de P.R., supra, *19.

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Similar untenable results were reached in Midwest Generation and Bunting Bearings

Corp. In Midwest, the Board again applied the “comparatively slight” harm test because the

Employer asserted the lockout was to exert economic pressure on striking employees. However,

at the time the Employer chose to exert the economic pressure, the Union had made an

unconditional offer to return. Despite the Employer’s assertion that economic pressure

motivated the lockout, the implementation of the lockout was bald discrimination against

employees who did not offer to return to work independent of the Union.

Despite the Employer’s proffered economic motive, the implementation of the lockout

created a clear inference that the lockout at a minimum also had a discriminatory motive to

retaliate against those who remained on strike to the end. The finding of a lawful motive,

together with an unlawful motive, does not preclude finding a violation of the Act.81 Because the

Employer’s implementation of the lockout facially discriminated against employees that

exercised protected rights longer than others, it would have been appropriate to begin the

analysis under the inherently destructive standard.

The decision in Bunting Bearings Corp. is equally flawed.82 The Board again reviewed

the Employer’s conduct in locking out only Union non-probationary employees and retaining

non-Union probationary employees under the comparatively slight harm standard, and found no

unfair labor practice. Once again, the Employer’s conduct was facially discriminatory because it

did distinguish between employees based on their Union membership status. When it is

established that an employer has in some form discriminated based on protected activity – here

Union membership, the base question of whether the conduct impermissibly impacted the

exercise of protected activity must first be answered.

In Allen Moving and Storage, the Board reached the right decision, finding that the

Employer’s disparate treatment of its sole non-striking employee permitted an inference that the

lockout was unlawfully motivated.83 The Allen record was also supported with clear evidence

that the Employer attempted to force an unlawful bargaining position on the Union. Given the

Board’s other decisions at issue here, it is questionable whether the Board could have found the

heart to make the correct decision based solely on the Employer’s disparate treatment of its only

81 Allen Moving and Storage Co., supra. 82 Bunting Bearings Corp., supra. 83 Allen Moving and Storage Co., supra.

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non-striking employee. There is no rhyme or reason to how the Board found it could make the

inference of unlawful motive based on disparate treatment in Allen, but not in Sociedad,

Midwest, or Bunting Bearings.

Whenever an employer acts in a facially discriminatory manner to distinguish between

the extent of protected activities among the bargaining unit, the Union member status of

employees, or in response to a threat to engage in protected activities, the conduct should first be

reviewed under the “inherently destructive” test in Great Dane because disparate treatment is

evidence that the employer’s purpose is not innocent.84 Discrimination among bargaining unit

members has the effect of discouraging membership in a labor organization, which also includes

discouraging participation in protected concerted activities, such as a strike. For the current

Board to ignore this premise and automatically lump the lockouts into the “comparatively slight”

harm category without examining how the implementation of a lockout might harm an

employee’s right to engage in protected activity is irresponsible to the national labor policy, and

does not adhere to the Supreme Court’s rulings in American Ship Building Co. or Great Dane.

To ignore evidence and the impact of facially discriminatory implementation of a lockout is

destructive of Section 7 rights that the NLRB is charged with upholding.

2. The Board has Failed to Balance Employers Asserted Business Needs Against Harm to Employees’ Section 7 Rights.

The Supreme Court in Great Dane allowed that some discrimination that would tend to

discourage membership in a labor organization is acceptable when balanced against an

employer’s substantial business justification, and the business need is found to be superior.85 To

establish a legitimate business objective, the Employer must come forward with actual evidence

of its asserted justification.86 The Board has, in three of the four cases under discussion here,

credited employers with business justifications that are clearly false or questionable in light of

the record facts, and engaged in no discussion of how employer needs are to be balanced with

employees’ rights to engage in protected activity. In essence, the Board has lowered the bar on

evidence it requires from employers to establish a business justification, and raised it on the

84 Allen Moving and Storage Co., supra. 85 NLRB v. Great Dane Trailers, supra. 86 See Inland Steel Co., 257 NLRB 65, 68 (1981) (“the employer alone is responsible for its conduct and it alone

bears the burden of explaining the motivation for its actions”), enf’d 681 F.2d 819 (7th Cir. 1982).

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evidence required from Unions to establish animus and impermissible harm to protected rights.

Whatever an employer’s fundamental interests may be, American Ship Building Co. still requires

that it be balanced against the harm the conduct may pose to Section 7 rights.87 Only an honest

examination of the manner in which a lockout was implemented will serve to determine the

superiority of rights in any given case. In finding that the employers advanced legitimate and

substantial business justifications for the lockouts in Sociedad, Midwest Generation, and Bunting

Bearings Corp., the Board never considered whether those justifications could be balanced with

employee rights to engage in protected activity.

In Sociedad, the Employer asserted that maintenance of operations and continuity of

patient care prompted the lockout and justified the use of temporary employees during the

lockout. Despite the fact that the Union canceled the planned strike and advised the Employer of

the cancellation, the Employer asserted it still feared that employees would not appear for work.

The Employer added it was concerned that it would be difficult to obtain temporary workers in

the event of a strike. The Board accepted this as a legitimate business justification to allow the

Employer to retaliate against the Union and its members for threatening to engage in protected

strike activity. As the dissent pointed out, the Board’s reasoning was extremely specious. First,

there was no strike to reasonably fear because it had been unequivocally canceled; and no special

or unusual circumstances existed that would have justified the discrimination, or the use of

temporary workers through the lockout.88 Second, the Employer provided no substantive

evidence beyond verbal assertions that it thought it might have difficulty recruiting temporary

replacements to maintain operations. Nonetheless, the Employer’s “reasonable concern” that it

would have difficulty recruiting temporary workers was reason enough for the Board to allow

free retaliation against Union members for a protected strike threat. Employees have a protected

right to threaten to strike. While an employer may have a corresponding right to act to protect

itself against the activity, it may not discriminate against the employees engaged in the protected

activity in a way that discourages membership in a Union or the participation in protected

activities.89 The impact associated with a lockout in retaliation for a protected activity is sure to

be great, and likely to lead employees to refrain from engaging in protected activity. Such a

87 American Ship Building Co. v.NLRB, supra at 312. 88 American Brake Shoe Co, Ramapo Ajax Div., 116 NLRB 820 (1956); Bali Blinds Midwest, 292 NLRB 243

(1988); Laclede Gas Co., 187 NLRB 243 (1970). 89 NLRB v. Great Dane Trailers, supra.

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result is not one contemplated by the Act, or the Board rules designed to promote collective

bargaining. The Board’s decision, however, was concerned only with the impact of the threat on

the Employer, and justification for the Employer’s action. Finally, the Board’s rule has the

unfortunate effect of discouraging Unions from giving employers notice of their intentions, and

encouraging Unions to blind-side employers with strikes.

The Bunting Bearings Corp. Board also accepted without question the Employer claim that

its partial lockout of only Union non-probationary employees was motivated by advancing a

legitimate bargaining position, and the distinction between the employees was justified by

operational needs. The Board’s finding that the Employer was “privileged” to exert pressure

where it would be most effective is flawed in two ways. First, it gives an employer cart blanche

to distinguish among employees in whatever discriminatory manner it chooses without

consequence in the name of a legitimate business justification. Second, in finding the Employer

“privileged” to exert pressure in whatever manner it desired, the Board gave no consideration to

what the impact of the conduct might be on the probationary employees who would be eligible

for Union membership in at most 90 days time. The Employer’s conduct here would surely give

probationary employees cause to be hesitant, if not unwilling, to join the Union, an inherently

destructive result of Employer conduct. Such a result clearly could not have been intended by

Congress or the Court.

In Midwest Generation, the Employer asserted that it was justified to lock out only strikers

because only they needed to be pressured to accept the Employer’s legitimate bargaining

position. The Board accepted this rationale based solely on the Employer’s belief that this was in

fact the case. The Board opined that the actual reason some employees became crossovers was

irrelevant so long as the Employer believed they had already converted to the Employer’s

mindset. This reasoning is utterly untenable. As both the Board dissent and the Seventh Circuit

pointed out, the Employer could also easily have inferred that all employees had abandoned the

Union’s demands because when the lockout occurred, the only difference between the strikers

and the crossovers was the length of time each had exercised his or her Section 7 right to strike.

The critical question, what is the impact of this conduct on the employees’ Section 7 rights, is

notably missing from the majority’s opinion. The Seventh Circuit, in its reversal of the Board

decision, took a stand for employees’ Section 7 rights. It is the NLRB that is charged with

21

upholding the Act, and when egregious violations of the Act occur, such as here, employees

should not be required to wait for courts of appeal to uphold those rights.

The Board’s decisions in these cases are “employer-centric.” Once the Board has

convinced itself that the employer has presented sufficient evidence, or in several instances,

testimony, of its business justification for the lockout, the analysis ends with nary a mention of

employees’ rights or why the Employer right is superior. To the Union mind, a balancing of

rights at a minimum requires a discussion and weighing of the harm to be done to each

respective party if their rights are not the ones upheld. The Board has quite simply shoved

employee rights under the rug.

3. The Board has improperly taken on the role of advocate on behalf of employers to establish the legitimate business justification in lockout cases.

Finally, another disturbing development that has emerged in this line of cases is the

Board’s new and Congressionally unauthorized role as employer advocate. To one degree or

another in these cases, the Board assists employers in creating viable rationales as to why

discriminatory conduct in derogation of Section 7 protected activity is justified. Any employer

in a bargaining situation can assert that a lockout was prompted to exert economic pressure, and

every employer can assert that its actions are justified in order to maintain operations. However,

the confines of the law require an employer not only to set forth a legitimate business

justification for conduct that may impact Section 7 rights, but to substantiate the proffered

justification with evidence beyond speculation.90 There is no law that permits the Board to

create rationales unasserted by the parties themselves.

Particularly troublesome are the Board’s decisions in Midwest Generation and Bunting

Bearings Corp. In Midwest Generation, the Employer’s offered business justification was that it

had no need to pressure crossover employees.91 The Employer never asserted that it needed the

crossovers to maintain operations during or after the strike. On the record, the Employer agreed

it had successfully maintained operations using supervisors, contractors and temporary

personnel. In its opinion, however, the majority reasoned for the Employer that its operational

needs justified the partial lockout, and urged that the dissent could not dispute “the crossovers 90 Conagra , Inc., 321 NLRB 944 (1996); Inland Steel, 257 NLRB 65, 68 (1981), enf’d 681 F.2d 819 (7th Cir.

1982); American Brake Shoe Co, Ramapo Ajax Div., 116 NLRB 820 (1956). 91 Midwest Generation, EME, LLC, 343 NLRB No. 12, *20 (September 30, 2004) (slip op.).

22

and nonstrikers lawfully aided the Respondent’s maintenance of operations during the strike.”92

Oddly enough, several pages later, the majority refused to find that the timing of the lockout was

cause for concern, because to make that finding, it would have had improperly to rely on pure

speculation93

In Bunting Bearings Corp. the majority rationalized for the Employer that its partial

lockout of only non-probationary employees was justified to exert economic pressure because

the probationary employees had a lesser interest in the outcome of the contract.94 The Employer

never advanced this argument on its behalf (perhaps because the Employer itself recognized that

an employee’s probationary period ends at some not-too-distant point. Instead, the Board chose

to advance it for Bunting Bearings as analogous reasoning to its faulty decision in Midwest

Generation. The legitimacy of the Board’s decisions are seriously compromised by its failure to

adhere solely to record evidence, and by its failure to demand strict proof of those arguments that

are advanced.

92 Id. at *14-16. 93 Id. at 23, citing Concepts & Designs, Inc. v. NLRB, 101 F.3d 1243, 145 (8th Cir. 1996). 94 Bunting Bearings Corp., supra at *22.

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CONCLUSION

Lockouts in retaliation against protected activity, such as the right to threaten strike and

ultimately strike, and partial lockouts aimed at segregating bargaining units or targeting specific

employees, are facially discriminatory and can be inherently destructive to of Section 7 rights.

Even if the harm were deemed comparatively slight, the act of the discrimination alone

demonstrates the Union animus necessary to establish a violation. If the Board continues to

permit employers to discriminate against employees in this manner without deeper inquiry into

the asserted business justification and the impact on Section 7 rights, one of the fundamental

premises of the NLRA, and labor relations in the United States – the right to strike – disappears.

24