American Ship Building Co. v. National Labor Relations Board

v. NATIONAL CO. BUILDING SHIP AMERICAN BOARD. RELATIONS LABOR 29, 1965. March January 21, 1965. Decided Argued 255. No. William, petitioner. for the cause Tyson argued Cavano. Charles him the brief With respondent. for cause Come argued J. Norton Cox, Frank General were Solicitor the brief him on With L. Manoli. Dominick Goodman, Ordman Arnold Chamber a brief B. Barton filed William curiae, amicus States, as of the United of Commerce reversal. urging by curiae, filed affirmance, were urging of amici

Briefs Antoine J. St. Mayer, C. Woll, Robert Theodore J. Albert Federation E. Harris for the American and Thomas Congress Labor and of Industrial Organizations, and M. Bernard Mamet for Local International Brother- of hood Boilermakers. the opinion

Mr. delivered of the Justice Stewart Court. Ship Building

The American Company seeks review of a decision of the of Appeals United States Court the District of enforcing Columbia Circuit an of order National Labor Relations Board which found company an had committed unfair labor practice under §§8(a)(1) (3) of the National Labor Relations question Act.1 The presented expressly is that reserved in Labor Board Union, v. Truck Drivers Local 353 S.U. 93; 87, namely, an employer whether an commits unfair practice labor under these sections of the Act when he temporarily lays off or during “locks out” his dispute a labor bring economic in pressure of support 1362, 1 142 N. L. enforced, App. 78, R. B. 118 U. S. D. C. 331 F. (1964). 2d 839 National Labor Act, amended, (a), 140, Relations as 8 61 Stat § (a) (1958 158 ed.): practice U. S. C. “It shall be an unfair labor § employer—

for an “(1) with, restrain, interfere or coerce in the exercise rights guaranteed of the title; in section 157 this “(3) by regard discrimination in employment to hire or tenure of any employment or encourage discourage term or condition of membership any organization in labor Act,

National Labor amended, §7, Relations as 61 Stat. (1958 ed.): “Employees S. C. 157 right U. shall have the to self- § organization, form, join, organizations, bargain or assist labor collectively through representatives choosing, of their own and to engage purpose other concerted activities for the of collective bar- gaining protection, or other mutual aid or and shall also have the right any to refrain from except or all of such activities to the extent right may agreement that such requiring affected an member- ship organization employment in a labor as a condition of conflict asserted resolve To position. his question important upon circuits2 among S. 814. certiorari, 379 U. granted law we federal four operates Company Building Ship American Buffalo, and Chicago, at Lakes —at Great shipyards primarily is company Ohio. Lorain, Toledo at busi- seasonal highly ships, repairing engaged freezing when the months winter concentrated ness What impossible. shipping renders Lakes Great of the is season shipping during obtained business limited utmost execution speed such frequently ships. immobilization minimize importance bar- in collective engaged Since nego- Prior eight unions. group awith gaining contracted had in question, here tiations having agreement occasions, each five on unions with chapter The particular by a strike. preceded been are concerned we which with history bargaining collective noti- unions 1961, when May 1, shortly before opened modification seek intention of their company fied the August on expire contract, due the current 1961, the June meeting on initial At the situation competitive position took the company unions compensation. increased allow benefits fringe increased for demands with countered were meetings Several increase. wage unspecified some negotiations during which July early in June held any without questions fringe benefit upon focussed parties meeting, At the last progress. substantial Concilia- Mediation Federal to call resolved 2 2d F. 301 Corp., Tile& Dalton Brick Board v. Compare Labor v. Labor Beverage Co. Bros. 1962); Morand (C. 5th Cir. A. 886 (1953), 2d 529 204 F. 1951), (C. 7th Cir. A. 576 F. 2d Board, Board, 270 F. 2d v. Corp. Labor Refining Quaker Oil State with Assn. Heating Plumbing Contractors 1959); Utah & (C. Cir. A. 3d 1961). (C. 10th Cir. A. 2d 294 F. v. tion Service, meeting July set the next for 19. At this meeting, the unions first unveiled their for demand a. wage 20-cents-an-hour proposed increase and a six- month extension of the pending nego- contract continued tiations. rejected proposed extension because it would expiration have led during peak season. negotiations

Further dispute narrowed the to five or six issues, all involving substantial economic differences. July 31, On the eve of the contract’s expiration, the em ployer a made proposal; the unions countered another, proposal revived their extension, six-month and proposed in the alternative that existing con tract, with its no-strike clause, be indefinitely extended with the terms of the new contract to be made retroactive August 1.3 After rejection of proposed extensions, the employer’s proposal was submitted to the unions’ membership; August 8 the unions that this announced proposal had been overwhelmingly rejected. The follow ing the employer made another proposal which the day, unions refused submit to their membership; the unions made no counteroffer parties and the separated without setting date for further meetings, leaving discretion of the conciliator. August

Thus on 9, after extended negotiations, parties separated having without resolved substantial dif- ferences on the central dividing issues them and without having specific plans for attempts further to resolve them —a situation which the trial examiner was an found impasse. Throughout the negotiations, the employer dis- played anxiety as to the unions’ plans, fearing strike the unions would call a strike as soon as a ship entered the Chicago yard delay negotiations into winter to the dissenting The members of the Board took the view that indefinite extension employer would not have afforded the enforeible protection against a strike. 142 B., N. L. R. at 1368. consist- negotiator The union leverage. strike increase agree- an reach to intention his was that it ently insisted concede he did however, strike; calling a without ment by out fact borne the workers —a over control incomplete February strike a wildcat of occurrence and strike an unauthorized danger Because nego- in prior of strikes use and deliberate consistent apprehensive remained employer tiations, stoppage. of a work possibility and the agreement reach failure light

In lay off employer decided work, of available lack re- August On workers. of its certain dispute of the labor “Because read: which a notice ceived you are August 1, since unresolved has been was Chicago yard The notice.” further off until laid off laid all two shut down completely Lorain at retained force was large A yard. the Toledo at the em- there of work piece major a complete as off mis- laid gradually yard Buffalo were in the ployees were re- Negotiations completed. tasks were cellaneous for the continued layoffs these shortly after sumed was two-year contract a until months following two recalled employees were The on October 27. upon agreed following day. Counsel the General unions, Upon claims filed employer charging the complaint the Board issued (5).4 trial (3), (a)(1), §§8 with violations no work had been although there found that examiner closing was not July 19, its since Chicago yard in the seasons similarly slack Despite work. lack due years retained for 17 had past, ready and remain work maintenance to do crew nucleus The examiner went come in. might work as take such reasonably apprehensive find on to Chicago yard. limited complaint was of a strike at some point. Although given had unions assurances that there would be no strike, past bargaining history thought to justify continuing apprehension that the unions fail to good make their assurances. It was further found that primary purpose in locking out its employees was to avert peculiarly harmful economic consequences which imposed would be on it and its if customers a strike were called either while a ship was in yard during the shipping season or later when the yard was fully occupied. The examiner concluded that the employer:

“was economically justified and laying motivated off its employees when did, and that the fact its judgment was partially by its intention colored break impasse which existed is immaterial peculiar special circumstances this case. Re- spondent, by its actions, therefore, did not violate Section 8 (a)(1), (3), (5) of the Act.” A three-to-two majority of the Board rejected the trial examiner’s conclusion that the employer could reason- ably anticipate a strike. Finding the unions’ assurances sufficient dispel any such apprehension, the Board was able only find one purpose underlying layoff: desire to bring pressure economic to secure prompt settle- ment of the dispute on favorable terms. The Board did not question the examiner’s finding that the layoffs had not occurred until after a bargaining impasse had been reached. Nor did the remotely suggest that company’s decision to lay off its employees was based either on union hostility or on a desire to avoid its bar- gaining obligations under the Act. The Board concluded the employer “by curtailing its operations at the Chicago South yard with the consequent layoff of the employees, coerced employees in the exercise of their bar- rights gaining in violation of Section (a)(1) of the Act, 306 mean- within employees its against

and discriminated 5 at B., L. R. 142 N. Act.” (a) (3) 8 ing of Section 136A-1365. exam- trial and the Board between difference

The differing assess- turning on one narrow thus iner is claims employer circumstances ments Board Both a strike. anticipate reason it gave pattern established assumed, within examiner and the down had shut if analysis,6 that of Board purpose solely for its workers laid off yard its impasse an to break pressure bear economic bringing an unfair terms, contract favorable more and secure that, has held “The Board out. be made practice may dur- an circumstances, special absent out to lock either threaten negotiations bargaining ing position. of his in aid his lock out infringes presumptively held Board has Such conduct in rights collective-bargaining upon its lockout, with and the (a)(1) 8 of Section violation within to discrimination amounts layoff, consequent Board has addition, In (a) (3). 8 meaning of Section the em- the Union subjects conduct such held that pressure illegal to unwarranted represents it ployees opportu- free which the atmosphere and creates (5) (a)8 by Section contemplated negotiation nity for 5 well, (a) (5) as 8 a violation complaint § stated Although the believing there claim, findings this as to no made the Board because bargaining order entering a point in no been would have quoted passage agreement. long executed an parties since had Insurance Board v. opinion from of this the text below infra), 317-318, (see pp. 477 Union, U. S. 361 Agents’ International also (a) (5) question. See application the 8 § direct more has even 886, 89A-895 Corp., 2d 301 F. Tile Brick & Dalton v. Labor Board 1962). (C. Cir. A. 5th Assn., L. R. B. 126 N. Heating Contractors Plumbing & g., Utah E. B. 334. Corp., N. L. Refining R. Quaker Oil State 973; Quaker Refining State Oil Corp., not exist.” does N. R. B. L. Board has, however, exempted certain classes of from has proscription. “Accordingly,

lockouts held that safeguard against lockouts are . . permissible . loss ground believing where there is reasonable that a strike Ibid. Developing threatened or imminent.” distinction rulings, approved lockouts designed to prevent plant by seizure of a a strike, sitdown Co., Link-Belt 227; 26 N. L. R. B. repetitive to forestall disruptions of an integrated operation by “quickie” strikes, Co., International Shoe 93 907; spoil- N. L. R. B. to avoid age of materials which would result from a sudden work Assn., Bottling Duluth stoppage, 1335; 48 N. L. R. B. to avert the immobilization of brought automobiles in for Olds, Inc., repair, Betts Cadillac L. R. B. In N. another distinct class of cases the Board has sanctioned by use of the lockout multiemployer a bargaining unit response as a whipsaw to a against strike one its mem- Co., Linen Supply bers. 109 N. L. R. B. 447, Buffalo sub nom. Truck Drivers Board, Union v. Labor rev’d F. 2d 110, rev’d, 353 U. S. 87.7

In analyzing the bargaining status lockout under (a) (1) (3) §§ 8 of the National Labor Act, Relations important it is that the practice with which we are here distinguished concerned be from other forms of tem- porary separation from employment. No deny one would an employer that is free to shut down his enterprise tem- 7The Board’s initial view was that such lockouts are unlawful. Beverage Co., Morand Bros. 409; 91 N. Co., L. R. B. Davis Furniture 100 N. L. R. B. 1016. The contrary view, Board later embraced the Supply Co., Linen supra, position by earlier taken the Ninth Buffalo reversing Circuit in the Davis Furniture case sub nom. Leonard v. (1953). 205 F. 2d 355 profitable lack of of renovation reasons porarily situation. collective to his unrelated work Board has cases where one side put we Similarly, evidence of substantial on the basis concluded a labor injure a means as used lockout has collectively. bargain duty or to his evade organization Paper 922; B. Co., R. Scott L. Retinning N. Hopwood here concerned are What we B. 535. Co., L. R. 81 N. Box solely layoff temporary of a use is the support to bear pressure economic bring a means as impasse after bargaining position, of the us, before only issue This been reached. decide.8 that we all (a) §of 8 is a violation practice

To establish interfered employer has be shown (1), it must exercise or coerced restrained, with, Board’s Act. The of the 7§ right protected some inter- the lockout view that on the position premised right by 7:§ rights guaranteed two feres with In the right to strike. collectively bargain employ- “punishes” view, Board’s use made demands adherence to of and presentation ees for the them so coerces and representatives bargaining their collectively. It right bargain to exercise in the allegation that no is here there note to that important designs in service the used the employer the There bargaining. of collective process inimical to was finding that no no evidence collective together for banding employees’ to its hostile discipline designed to lockout was bargaining that opinion concurring filed expressed in a Contrary the views consequences which as to view case, no whatever we intimate permanent employees replaced follow had Mackay Board help. v. temporary Cf. or even replacements Co., 333. Telegraph 304 U. S. & Radio doing them so. It is say therefore inaccurate to intention destroy was to or frustrate the process bargaining. of collective can be What said intended resist of it demands made negotiations secure modification of these de- mands. see that in any We cannot this intention is way inconsistent with employees’ rights bargain collectively.

Moreover, general there is no either as a indication, matter specific or in this case, that the lockout will neces- sarily destroy capacity the unions’ for effective and re- sponsible representation. here unions involved have vigorously represented employees since there is nothing to show that their ability to do so impaired by been the lockout. is the lockout Nor one of those acts which demonstrably are so destructive bargaining collective inquire need not Board into employer might motivation, as be the for exam- case, ple, if an employer permanently discharged his unionized replaced staff and them with pos- known to be sessed of a violent antiunion animus. Cf. Labor Erie v. Resistor Corp., may 373 U. S. 221. The lockout well adhering dissuade from position to the which they initially adopted but the bargaining, right bargain “right” collectively any does not entail position insist on one’s free from economic disadvan- tage. Proper analysis problem demands that the simple intention to support employer’s bargaining position compensation distinguished as to the like be from a hostility process collective which could suffice to render a lockout unlawful. See Brown, ante, p. Labor Board v.

The Board has the complementary taken the view that right protected lockout with the interferes to strike under to the allows in that Act9 the 13 of §§ 7 the leave thus a strike possibility the pre-empt as this Insofar against.” strike “nothing union with de- are they out, are locked once that means the against strike to call right prived of wholly argument the down, already shut he is because been have would stoppage work for the specious, is true It occurred.10 fact in strike of the object ex- union deprives of the recognition that stop- of work duration timing control clusive bar- of collective result influence calculated pages statute nothing in there is but negotiations, gaining with “carries right to strike imply which would and dura- timing exclusively to determine right it” the as com- to strike right stoppages. all work tion of nothing cease right work — is the monly understood be would power bargaining a union’s No doubt more. to strike right simple only the not possessed if it enhanced work when determine exclusively to power also but are not provisions the Act’s occur, should stoppages shaped be forms elastic, content-free indefinitely conforms think best might manner whatever power. bargaining balance proper a lock- use see cannot Thus, we position legitimate aof support solely out col- bargain right with way inconsistent any is in con- we Accordingly, to strike. right with lectively or 13, 61 Stat. amended, Act, § as Relations National except as subchapter, “Nothing in this ed.): (1958 29 U. S. C. § either so as construed be herein, shall provided specifically strike, right to way any diminish impede or or interfere right.” on that qualifications limitations affect or to stoppage work employer-induced the extent course to Of ancillary be achieved could objectives which accomplish not did from precluded the union picketing, measures, as such measures. those employing findings

elude that on made the Board the basis (a)(1). in ease, has been no violation of 8§ there in (a)(3) regard Section discrimination prohibits employment discourage tenure or conditions of other membership. union there Under words statute resulting discourage be both and a must discrimination membership. long ment of union It been established has finding normally that a of violation under this section will employer’s turn on the motivation. See Labor Board v. Brown, ante, p. 278; Radio Union v. Labor Officers’ Board, Laughlin 17, 43; 347 U. S. Labor Board v. Jones & Corp., 1, Steel S. when the employer U. Thus discharges shop rules, a union leader who has broken the problem posed is to determine whether the has purely shop acted disinterested defense of dis cipline or sought damage organization. employee likely It is discharge will naturally tend to dis courage union membership both cases, because loss of union leadership employees’- suspicion employer’s true intention. But consistently we have construed range the section to leave unscathed a wide legitimate actions taken to serve inter lousiness significant ests fashion, though some the act even may discourage committed membership. tend union g., See, Mackay Co., e. Labor Board Radio Telegraph v. & 304 U. S. 347. Such a (a)(3) § construction of 8 if protection essential due employer’s is to be accorded right manage enterprise. his See Textile Workers v. Darlington Mfg. Co., ante, p. 263.

This is to deny practices that there are some inherently are so prejudicial to union and so interests significant devoid of justification economic no spe- cific discourage evidence of intent membership union or other required. antiunion animus In cases, some it may be that employer’s conduct carries inference of unlawful so compelling intention it is protestatiQns to disbelieve

justifiable v. Labor Union Radio purpose. innocent Officers’ Corp., Erie Resistor v. Board 44-45; at supra, rule, shop broken many have where Thus supra. need discharged, the been leaders have only union was discipline shop that plea long to too not listen have situations, we In other enforced. being simply . . . delicate task more “far as process described activ- in concerted of the interests weighing operating employer interest ity against Board .” Labor . . . manner a particular his business at 229. supra, Corp., Resistor v. Erie category that fall into not does But this lockout may the Board (a)(3) which arising under §8 cases this As motivation. employer into inquiry truncate carry with does not use of lockout shows, case well employer acted that necessary implication any it discriminate otherwise membership or discourage union effect purpose as such. members union against the union upon bring pressure only to were the lockout appear Similarly, does it demands. modify its severely is tendency natural that significant no serving while membership discourage union to understand difficult fact, it is In interest. employer other- membership or discourage union tendency what perceived was union members against wise discriminate employer claim no There is by Board. any out or locked members, union only out locked nor member; a union because he simply employee upon rehiring conditioned alleged that It true the union. from resignation of their union’s disadvantage because economic suffered employer, unacceptable demands insistence may an steps many true is also existence and the conflict, during a take himself may feel someone possibility arguable discouraged in his union membership or discriminated against reason of that membership cannot suffice label them (a) § 8 (3) violations of absent some unlawful intention. The employer’s permanent replacement of (Labor strikers Board Mackay v. Radio & Co., Telegraph supra), his unilateral imposition (Labor of terms Board Tex-Tan, Inc., v. 2d 472, F. 479-482), or his simple refusal to make a concession which would a terminate impose strike —all economic disadvantage during a bar- gaining conflict, but none is necessarily a violation of 18(a)(3).

To find a violation (a) §of 8 (3), then, the Board must find that the employer proscribed acted purpose. Indeed, has always itself recognized that cer- “operative” tain or “economic” purposes justify lockout. But the Board has in ruling erred that only these purposes will remove from lockout the of ambit § 8 (a)(3), for that section requires an intention to dis- courage union membership or otherwise discriminate against the union. There was not slightest the evidence finding and there was no that the employer was actuated by a desire to discourage membership in the union as dis- tinguished from a desire to affect the outcome par- ticular negotiations in which it was involved. We rec- ognize that the “union membership” which is to be discouraged refers to more than payment the of and dues that measures discourage taken to participation in pro- tected union may activities be found to come within the proscription. Radio Union v. Labor Officers’ supra, at 39-40. However, there is in nothing the Act gives which employees right the to insist on their con- tract demands, free from the sort of economic disadvan- tage which frequently attends bargaining disputes. we Therefore, conclude that where the proven intention is merely to bring about a settlement of a dispute labor terms, favorable no violation of § 8 (a)(3) is shown. of analysis from we draw conclusions of little what with consonant (3) are and (a)(1) §§8 statute the of balance from the drawn be can

relevance version original In the history. legislative unfair it an declared (a)(1) 8§of Act, predecessor influence, interference, by attempt, practice “[t]o labor any other by or lockout, coercion, or favor, restraint, in guaranteed right impair means, at leveled criticism Prominent 4.” section charge that hearings was Committee Senate bill employers treatment even-handed accord it did not pro- while prohibited because criticism, of such face In strike.12 tecting inter- employee prohibiting provision added Committee deleted activities13 ference inferenee plausible A lockout.14 the reference was de- language is that history from drawn be 1935, Act, Relations History the National Legislative 11 1 provided: the bill 4 of Hist.). Section Leg. (hereafter organiza- join labor organize and right to have “Employees shall organiza- labor activities, either engage in concerted tions, bargaining col- organizing and purposes otherwise, for the or tions other choosing or own representatives through lectively Ibid. protection.” or aid purposes of mutual 570, 545, Leg. Hist. 12 1 (2): 2926, 3 S. § attempt, employees to or practice [¶] unfair “It shall by employers exercise impair the coercion, to interference repre- designate organizations and form join or right to of collective purpose choosing for the own their of sentatives Leg. Hist. 1 bargaining.” 14 (1): S. §3 attempt, employer to an practice [f]or unfair be an “It shall of by impair exercise the coercion, to or by interference represent- designate to organizations, join labor or form right to the activities in concerted engage to choosing, and own of atives pro- or aid mutual or other bargaining of collective purpose Ibid. tection.”

315 inequitable an in the bill who those saw mollify to leted lan- any remove and to lockout, to the resort of denial was lockout fears that rise might give to guage event clear any It is se. per being proscribed lockout of status concerned with Committee con- enacted, finally and as reported as bill, and that the such. as the lockout use of on the prohibition tained no spe- refers (a)(3) 8§ nor (a)(1) Although § neither of the provisions other lockout, various cifically to lockout, and Act refer do Labor Relations National recognition as a interpreted can be these references economic applying as a means device legitimacy of the Thus positions. in support pressure aof the use ed.) prohibits (1958 (d)(4) 158§ S. C. U. have procedures notice requisite or unless lockout strike ed.) (c) (1958 173§C. with; 29 U. S. complied been Service and Conciliation Mediation directs Federal without disputes of labor voluntary resolution to seek 176, 178 §§ S. C. lockouts; and U. to or resort strikes President whereby the (1958 procedures ed.), authorize strikes inquiry to forestall certain a board institute can "strike” of the terms use correlative lockouts. The lock- contemplates “lockout” these sections fashion. bargaining process some in the will be used outs serve define provisions these say not to This That, in employer. of a scope permissible ultimately question is a present case, context of (a)(1) (3). by analysis §§ resolved its in this case and ruling its justified The Board has on the basis legality of lockouts approach general interests weigh competing competence special itsof these to accommodate employers and "The Board judgment. according expert interests availability of such reasonably concluded that in the em tip scales weapon substantially would so Congressional purpose favor as defeat the ployer’s at the adversary their with par a on employees placing the toas decision its To buttress table.” points Board the case, particular in struck balance weapons other given been has employer the out The em of strike. power employees’ the counterbalance gone have who workers replace may permanently ployer main subcontracting, and stockpiling or, by strike, on out bear strikers while the operations commercial his tain Similarly, stoppage. work of brunt economic conditions working unilaterally institute can union with contract his once he desires which argued, isit weapons, economic these Given expired. of tools equipped adequately has been self-help. economic Board question no of course There its of recognition deference greatest entitled In problems. labor dealing with competence special interests competing evaluation its

many areas given unquestionably should employee and employer, application determining effect conclusive we However, think (5). (3), (a)(1), 8§§ it when expansively too functions construes policy labor national define authority general claims labor interests competing balancing the by management. Rela- National purpose primary

aWhile of eco- imbalance perceived to redress Act was tions sought it management, between power nomic affirmative certain conferring by that result accomplish enumerated certain placing on rights Act pro- employers. activities restrictions coerced restrained, or with, interfered acts hibited organize rights exercise in proscribed strike; and to collectively, bargain union, to Brief Respondent’s other conditions tenure and regard in to discrimination labor membership any in discourage employment provisions of these organization. purpose The central process and the employee self-organization was to protect by interferences bargaining disruptive from collective organization in Having protected employee employers. bargaining power, and employers’ countervailance to the bargaining a having system established collective whereby newly might resolve their coequal adversaries Act resort to economic disputes, also contemplated not avail. Sec- weapons peaceful should more measures 8(a)(1) give gen- tions (3) do not the Board eral authority power to assess the relative economic deny in bargaining process adversaries and to weapons party to one or the other of its assess- because party’s power. ment of that bargaining Labor Board v. Brown, ante, p. has, In case the Board this essence, bargaining denied the use of the lockout to the employer because of its conviction that use of this de- give vice In power.” “too much so far doing, (a)(1) (3) §§ Board has stretched beyond of protecting rights functions of em- ployee organization bargaining. and collective What we recently have in a closely said related context is equally applicable here: the Board moves in this area ...

“(cid:127)[W]hen it is functioning as an arbiter of the sort of economic weapons parties can seeking gain use in ac- ceptance of their bargaining sought demands. has It to introduce properly some standard of ‘balanced’ bargaining power, or some new distinction of justi- fiable and unjustifiable, proper and ‘abusive’ eco- nomic weapons into . . . the Act. ... We have expressed our belief this amounts Board’s aspects entrance into the substantive of the Congress extent an process Agents’ Insurance v. Board

countenanced.” 477, 497-498. Union, U. S. International construction fair any find that unable areWe support can case this Board by relied provisions role Indeed, practice. anof unfair finding in- fundamentally area by the assumed function Act structure consistent owed deference upon. relied sections judicial into slip allowed cannot tribunal expert assumption unauthorized in the results inertia by made properly decisions policy major of agency an vio- employer an that hold we Accordingly, Congress. a bar- when, after (3) (a)8§ nor (a)(1) 8§ neither lates shuts temporarily he reached, been impasse gaining pur- sole the for employees his lays off and plant his down of support in to bear pressure economic bringing of pose position. bargaining legitimate his Reversed. result. in concurring the White, Justice Mr. economic of use the holds today Court his improving of purpose the employer by an weapons provisions broad violate never can position bargain- hence and NLRA of the (3) §| and (a)(1) of aof to demands in resistance of ing lockout proscriptions from exempt invariably union Goldberg out, Court points well Brother myAs Act. with reconciled that cannot standards legal applies in functions Board’s defining of this Court decisions so without does Act and sections these applying are premises factual Board’s if the ascertain pausing think I also evidence. substantial by supported a bar- legality establishing the the process in Court, this facts uncontradicted lockout, overlooks gaining examiner trial findings of accepted and the record closing employer’s to me indicate bring- purpose for the a “lockout” was not Chicago yard to secure and impasse an break pressure ing economic terms. contract more favorable whether in this case posed issue

In view my cus- may inform a strike anticipates in fact who relation- commercial his protect belief tomers of this property, safeguard customers ship lay off then business, and discouraging thereby trial like the I, work. no available there is for whom conduct this not think and do may, think examiner, he merely (3) (a)(1) 8§§ under impeached can be were his customers asserting that imminent. believing a strike erroneous and presumably Appeals, Court except examiner, of the trial findings all the Court, accept a strike honest belief finding that the The examiner fact. basis a reasonable occur had Chicago yard at the layoffs time of the at the found that yards, the other very little at no work there there was was com- work all available until open which remained crew a nucleus seasons slack summer During past pleted. emergency perform to yards at the retained had been customers. regular 14 or 15 Building’s Ship for repair jobs work, maintenance also did these job, Absent a regular customers of these accommodation the for only reason was the good will of their retention unprofit- being otherwise operations remaining open, the at the unrest of the labor learned customers able. The Building’s Ship newspaper accounts through yards long-standing to tell constrained felt managers, who plant course during a strike of possibility of the customers of yard was the Buffalo manager of repair of work. into brought the boat owner that that “the opinion have if he would in his head rocks the dock would have however. refused, not was Work the chance.” taken during that repairs for any, requests if few, were There being re- shipowners of number summer, a substantial job The last yard. into bring their vessels luctant closing. The before three weeks Chicago yard left Building Ship closing, of at the time found that examiner no in the yards, maintenance working on “men had refusing customers anticipated, and none hand, work on was there whom for workers Only those in.” work send on. The were taken no new jobs laid off and were work no not was unaware that noted examiner of effect possible strategy and negotiating union’s all assessing carefully strategy. But closing considerations most these at he found that testimony The exam- motivation. employer’s colored partially in- “the economic facts from these concluded iner they improper anything overshadowed so ducements the eco- particularly when primary, be considered must through no them arose supported factors nomic layoff.” anteceded Respondent fault to lack closing was due finding Given the as the say, is no answer Chicago yard, it at the work basis antici- no was reasonable that there does, an offensive bar- closing was and hence strike pate basis a reasonable there lockout. Whether gaining employer, remains that the fact not, fear a strike consequently strike, and fear a customers, did long It has been employees. work for was no there modify or shut down free to an law that unrelated reasons business temporarily operations and the statutory rights, his the exercise to business response reasonableness Pepsi- to review. See ordinarily subject exigencies (1964); Associated Co., L. R. B. 785 Bottling 145 N. Cola America, Inc., L. R. B. Contractors N. General v. Labor Paper Products Fibreboard (1953); cf. 203;

U. S. Textile Workers Union Darlington v. Co., Mfg. ante, today, decided p. 263. There is nothing in the deci- sions the NLRB, including this case, indi- cate that there are occasions when an employer may not truthfully inform his customers of a labor dispute and his fear of a strike to protect his business property and may lay off employees for lack of work. Indeed, these decisions hold that an employer may shut down response to such economic conditions, even though these conditions are the result protected concerted activities, Pepsi-Cola Bottling Co., 145 N. L. R. B. 785 (1964); Associated General Contractors America, Inc., 105 N. L. R. B. 767 (1953); H. H. Zimmerli, 133 N. L. R. B. 1217 (1961), long so as the of or creation alleged reliance on these conditions is not a subterfuge for a lockout, Co., Ripley Mfg. 138 N. L. R. B. 1452 Savoy (1962); Laundry, Inc., 137 N. L. R. B. (1962); England New Web, Inc., 135 N. L. R. B. 1019 (1962). There is no evi- dence here that the lack of work was a result the em- ployer’s decision or desire to lay off its employees and the Board did not so find. I do not now determine whether a temporary economic shutdown could ever be found vio- late the Act. Here the Board given no reasons, no rationale, to show how closing violated the Act, except say the closing was a bargaining lockout. A lockout is the refusal an employer to furnish available work to his regular employees. It is apparent that the considerations which fault an employer for refusing to furnish available work are quite different from those which would prohibit him from laying off workers for whom there is no work. Hence, reliance on the Board’s lockout cases does not ex- plain, no support, less the result reached this case. The compelling conclusion is that the Board has failed to “disclose the basis of its order” and to “give clear indi- cation that it has exercised the discretion with which Con- gress has empowered it.” Phelps Dodge Corp. v. Labor Board the say to is not This S. Board, 313 U. bargain- the to regard in balance erroneous an reached

has lockout bargaining the that say to lockout; ing layoffs the of legality the judge to suffice will analysis case. this in employer’s the assimilates the Court, like the restrikes lockout bargaining the to here conduct clos- the for justification actual the balance; it dismisses . . . found “examiner the that assertion the with ing sim- Despite work. of lack not due was closing [the] had the the past, in seasons slack ilarly work maintenance do crew a nucleus years retained in.” come might as work take such ready to remain found the examiner since This, puzzling, Ante, at 304. the nor Board the neither contrary, land the precisely findings. these issue took Appeals of Court the maintained crew a nucleus said examiner per- work, the emergency expectation only in the past main- necessary thought being work of such formance uncer- labor Because will. good customer tain jobs emergency undertaking decision tainty and expec- nowas there relations, customer jeopardize would past 1961, unlike summer during work tation lay off decision an I think years. Since ordinarily barred is not of work of lack because Court nor the Board neither the since Act, and by the Board’s reverse I would claim, ignore can properly not at issue to decide out reaching without order, but case. by this presented all bar- status on the rule does the Court Since Act, Relations Labor National under

gaining long Court This views. my state constrained I feel not under- “did Act Labor Relations recognized un- precise specifying task impossible take constitute which incident each language mistakable “left practice,” an unfair language general prohibitory Act’s applying work of of events combinations infinite light of Republic terms.” of its as violative charged might Thus 793, 798. Board, 324 S.U. v. Corp. Aviation the Court lockout, as legal status Union, 353 Drivers Truck Board v. in Labor indicated balancing of the “the is to determined 87, 96, be U. S. interests.” legitimate conflicting value here —the interests these Board has balanced impact its against weapon as an economic the lockout

of to right including the activities, concerted protected on Labor solicitude, special Act has strike, for which has 234—and S. Corp., Resistor U. Erie Board v. obtaining a interest employer’s that determined damaging conse- outweigh the not victory does bargaining for an em- that It determined of lockout. quences of because of their livelihood employees deprive ployer to in order and representatives by their made demands coerces demands, employer’s compel submission collec- bargain right of in their exercise this right. And to that discourages resort tively reducing the sharply right strike, with the interferes union con- denying weapon of that effectiveness The Court contest. timing the economic of trol over lockout on the reasoning ground rejects of collective “demonstrably destructive so not conduct into the,Board not inquire need Ante, employer’s true at 309. Since motivation.” dispute on settlement is to about bring motive discourage- substantial there can no terms, favorable or concerted membership interference with ment union right only right And to strike activities. rather only encourages than work, cease which the displaces. Board’s tour de denies the assessment

This force rights this truncated definition employee on impact isAct, in the supported nowhere strike, right of the mo true today Until unprecedented. always been determinative purpose or sole tive Aviation Republic rights. employee impact of the Union Radio Board, 793; S. 324 U. v. Labor Corp. Officers’ Truck Board v. Labor 17; S.U. v. Labor Erie Resistor Board v. Labor Union, 87; S. 353 U. Drivers & Burnup Board v. 221; U. S. rp., Co employ importance Inc., Sims, S. 379 U. operations, continue replacements to hire right er’s to believe reason good he has to fire right of his Erie was not doubted misconduct gross guilty are Sims. Burnup & Nonetheless Resistor and super- the award upheld in determination the sus discharge of replacements to strike seniority course, practices. Of unfair employee were pected legitimate business pursuit in the is taken such conduct for it speak does nonetheless the “conduct ends, consequences it with unavoidable it carries self ... must he only but foresaw which employer which I Resistor, 228. S., 373 U. at Erie have intended.” an jobs loss of apparent thought would have jobs, which loss the threatened period, indefinite and Textile sanctions, cf. assuredly decision the Court’s Co., today, Darlington decided Mfg. Workers Union v. negotiating the union’s ante, 274, 20, n. because at hardly encour § conduct under protected itself activity, with union. age affiliation a says today, an what it

If the Court means with impasse after consistent only lock out may not replace his locked-out (a) (1) (3), and §§ ante, Brown, Board v. cf. Labor temporary help, lock also permanent replacements, p. 278, perhaps or Maintaining impasse is reached. long before out im- at as during dispute equally a least operations see achieving bargaining victory, a an interest as portant Co., 304 S. Mackay Telegraph Radio & U. Board v. negotiations ad- during or before a shutdown 333, as a as much bargaining position employer’s vances an hiring replacements impasse. after And “to resist intent employer’s with the wholly consistent negotiations and to secure it in the made of demands Ante, I at 309. would of these demands.” modification (3) may he (a)(1) 8§§ that under also assume the union’s resisting purpose for the sole lock out bargaining con- a collective grievances under assertion of legitimate Given these a no-lockout clause. tract, absent motivation, there is no antiunion purposes, business be deemed a lockout cannot motivation, absent such into em- rights. “[I]nquiry of employee destructive Ante, at 312. may not be truncated. ployer motivation” simple demands that “Proper analysis problem bargaining position support intention from a distinguished and the like be compensation as to process of collective hostility Ante, at suffice to render lockout unlawful.” could bargain- of a may impact I the Board assess the think that regard employee rights, without ing protected lockout on failing give errs in motivation, and that the Court in this to the Board’s conclusions due consideration regard. legiti- “conflicting

The balance and accommodation labor relations admit of mate interests” does not intent or simple myopic solution and a focus the true has not been the determinative motive of the points standard of the Board Court. As the Court may business things employer an do for out, are there in- rigid are inconsistent with a or literal which reasons rights as employee Act, of under the such terpretation replacements. hire strike Labor Board v. right Co., 304 But there Mackay Telegraph Radio & U. S. 333. may clearly Republic others which he not. just are as 221; S.U. Resistor, 793; Erie Aviation, S. 324 U. interpretation literal A21. Sims, U. S. Burnup & justify nor cases, these to reconcile suffice will not employer an saying in For case. present in result ignores fully Court employees, all his may out lock refrain “to statutory right explicit the most these Nor can activities.” all any or [concerted] from con- test the Court's explained cases be prejudi- “inherently so it unless proscribed not duct is eco- significant so and devoid interests union cial to motivation true 311, that ante, at justification,” nomic clearly test shown. independently be need not purposes motivations among several choosing one of and employers interests respective weighing the Court standard that is the I think And employees. without but case, this in applies in strike the Board is for balance fact the heeding the instance. the first reflected task, “delicate area is role in Board’s weighing Court, of of this in part decisions against activity in concerted

interests ain business his operating interest at 229. Resistor, S., 373 U. Erie manner.” particular this Court. attack from immune are not Its decisions evidence by substantial supported findings must be Its adequate, be it, before the case must fit explication and its accept- Act of the policy upon based I would reverse realities. reading industrial able articulated has not because here decision Board’s de- found the facts between connection rational to vindicate deprecate, “This is made. cision S. 313 U. v. Labor Corp. Dodge (see Phelps purpose process, administrative 197), the domain court into the 'propel[ling] to avoid rule is adminis- exclusively for the aside set Congress S., Burlington Truck at 196.” 332 U. agency.’ trative

327 ask is to 169. It 156, S. States, 371 U. v. United Lines discretion exercised it has show that Board to a reasoned on insistence Act. Such it has under which review, espe- judicial function foremost ais decision sought are interests conflicting significant where cially Exchange & Securities Compare accommodated. to be with Securities S. 318 U. Chenery Corp., v. Comm’n S. 194. 332 U. Chenery Corp., v. Exchange Comm’n & reasoned Board’s reject not to function But this weapon economic particular of a impact of the assessment restrike not to certainly It is rights. employee reached. Board has balance Chief Goldberg, whom Justice Mr. result. concurring joins, Justice employer’s that the conclusion the Court’s I concur in (1) (a) § 8 of either not a was violation case this lockout Act, 49 Stat. Relations the National (a) (3) of or 8§ (1958 (3) (a)(1) and 158 29 S. C. §§ amended, U. 452, as reversing the judgment in the join I ed.), and therefore Court’s not for the result reach this I Appeals. Court by the revealed plain facts from the because, reasons, here clear crystal it is record, by the Court facts recited very justifiable. out its locked show opinion circumstances under strike of a threatened face in the solely left been timing choice had the where, been have customers and its unions, loss beyond over injury to economic subject termina- upon a strike normally incident business A lockout agreement. collective tion recognized been circumstances these under a violation and not justifiable to be itself B. Olds, Inc., L. R. 96 N. Betts Cadillac labor statutes. L. R. B. Corp., Electronics N. Bell Packard 268; see 907; B. Duluth Co., L. R. 93 N. International Shoe 1122; Oil Quaker State 1335; B.R.L. Assn., N. Bottling 334, R. B. L.N. Corp., Refining the that found Board Labor the examiner trial The strike a that believed “honestly reasonably and employer was a vessel when immediately, place take might closer until delayed be would that docked, or more Respondent when months winter the com- the that 1382, atB., L. R. 142 N. vulnerable,” the . . . violate did therefore, actions, “by pany dispute did not Board The B., at 1383. L. 142 N. R. Act,” in employer that finding fact examiner’s trial deny it did Nor threatened. a strike that believed awas “there that reasonably believed if the that 142 justified. would be the lockout threat,” strike real however, rejected The at 1364. B., L. R. N. disagreed because examiner the trial finding of ultimate reasonable “had that his conclusion with added.) (Emphasis a strike.” fear grounds single ain Appeals Court at 1363. B., L. R. N. con- point this holding on Board’s sustained sentence find- the Board’s “that analysis, detailed cluding, without fearing basis for no reasonable respondent had ing support.” requisite record a not without the strike is Board’s conclusion my In view 839, F. 2d was unreasonable strike fear a admitted employer’s is at support record requisite only is not without rela- industrial “the actualities complete variance 364, Steelworkers, S.U. tions,” Board v. effectuating in is to take into account which the policy. the national are dis- which the facts do not deal with a case in

We contro- puted Board has resolved testimonial and a review undisputed, The facts here are versies. a strike fear of demonstrates them unions to cause strategically at a selected time maximum damage give and to the unions it maximum totally reasonable. advantage was economic primarily engaged repair- employer company is the Great Lakes shipyards four ing ships operates Toledo, Ohio, and York, Lorain and Buffalo, at New out, the points Illinois. As the Court Chicago, South concentrated highly seasonal, employer’s business Lakes are frozen over winter months when the Great impor- is of the utmost shipping impossible. Speed is short and business, shipping for the season tance during the season ship of a for several weeks tie-up spring in a into in the delay ship’s re-entry or a service impact. stoppage economic A work produces severe yards is in the can have serious economic ship while for employer both for the and his customers. consequences entrusting ships justifiably wary Customers are bargaining a dis- yards at time when collective pute expiration is unresolved. For this reason the date of a as is a vital issue in contract situations such this bargaining. expiration seeks an employer collective The during expira- date the slack the union seeks an season; during busy tion season. In this case as a result date past bargaining, expired contract on August during rather than 1, busy season. negotiations

From 1952 until when 1961, now began, employer negotiated under consideration had the eight five times with unions here and it involved, had experienced exactly negotiation. one per strike in 1952, 1953, strikes and 1956 three 1955, lasted about each, weeks and the strike 1958 continued 10 weeks. engaged In 1955 had in a slowdown before the agreement expired thereby caught an $8,000,000 ship in the the use of yard, which was lost to the customer for during four weeks its busiest In February season. 1961, height busy at season, wildcat stoppages work Chicago occurred in and Buffalo. notified the unions May

Shortly before due the contract modify they wished to employer meeting on first 1. At the August on expire maintained that spokesman employer 6, 1961, June wages any increase prevented conditions competitive and asked opposite view The unions took or benefits. and other benefits. pension increase in for a substantial throughout June met on numerous occasions parties July. negotiations progressed, As the original improved from position receded its and offered benefits; wages from some of their the unions receded meeting demands, but of the minds was reached. July On 20 and subsequently, August expira- tion approaching, proposed date the unions a six-month given extension of the current contract. This would have the unions an expiration advantageous date at a most time to them; rejected proposal on the grounds that the expire February contract would then 1962, very height of busy season, and that no customer would risk its ships putting them the com- pany’s yards knowing that the labor contract was about to expire. July On negotiator the unions’ informed the employer that the union members had voted “over- whelmingly to take a necessary.” strike if July On 31 the employer made a new and wages increased offer on benefits, asked proposals that its be submitted to the em- ployees for a vote and offered extend the contract for the period limited sufficient to enable this vote to be taken. The unions in turn asked that agree- the labor ment be indefinitely extended until a agreement new was reached. The employer agree refused to to an indefinite extension of present contract on ground the could then be any struck at time of the choosing.1 unions’

Although the expired contract on August 1, the unions did not call a strike on that date but continued work See note infra. re- the and submitted basis day-to-day on a August On membership. of the a vote offer vised had proposals that its employer the informed unions the On employees. by “overwhelmingly” rejected been many offer on package a new made employer August offer, this new rejected negotiators union issues. made vote, and for employees it to the take refused to off broken without were Negotiations no counteroffer. meetings between further plans any definite of a federal the call left to meetings were Future parties. mediator. contract and expired anof situation

Faced with at a time particular any time, to strike at unions free or whenever season, during busy choosing of their own to shut decided employer ships, filled yard off all two lay completely Chicago yard down issued were Toledo. Notices at stated, Buffalo, which to some Chicago, Toledo, and at unresolved has been dispute of the “Because notice.” off until further are laid you August 1,1961, since con- after this Negotiations were resumed reached October agreement was tinued until then Since recalled to work. then employees were laid off and have negotiations in other engaged parties have or lockout. either strike contracts without agreed upon examiner held that the trial On record when the strike the unions would reasonably feared reasonably He found ripe. time was believed that: strategy was: Unions’

“[t]he nonproductive working Lorain, keep at “Keep at other long as possible as payroll men on the (a) ship- A things occurred: one of two yards until yards, ship into one owner send Respondent would forced striking, the then satisfactory effecting a labor settlement his knees if con- occur, then, (b) this didn’t Union, 332 and then months, the winter into bargain,

tinue Decem- November, effective agreement an execute when way, in this February, or January, ber, sure would be Respondent reopened, agreement a time at such a strike docks, and ships have effecting knees to his Respondent bring the at 1381. B., R. N. L. agreement.” no unfair held that trial examiner Accordingly the followed settled holding This committed. practice was to safe- permissible “lockouts are Board doctrine hazards or problems operational guard against unusual for ground there reasonable loss or economic where or imminent.” . . . threatened believing that strike [is] Quaker supra, at Refining Corp., Oil State trial examiner’s ultimate overturned The Board totally unsup- ais reaching what, record, on this holding, of a strike employer’s fear conclusion —that portable its conclusion rested upon was unreasonable. convey every effort to made grounds that “the Unions strike; they not to their intention Respondent to the work called, any if a strike gave also were assurances yard before the strike would brought Respondent’s into further offered to extend the completed. The Unions existing provision] contract contained no-strike [which indefinitely, until terms were months, contract Upon L. R. at 1364. anal- B., reached N. ysis grounds it is clear that none of these will support Board’s conclusion that the employer had no reasonable basis to fear a strike. finding Board’s that “the every Unions made effort

to convey Respondent intention not strike” upon is based statements negotia- union made during tors negotiations. the course of the The chief negotiator for the day unions testified that on the first “I negotiations, my understanding stated that it was past every— seemed to have been a at there strike during negotiation every World War II from infor- since I mation had received, hope and it was our sincere that we negotiate could this agreement go through those — negotiations negotiate agreement a new any without that strife, always I a personally strong had dislike to thought strike and I parties that if two sincerely desired to reach an agreement, could be one reached without strike. The Company . . . that Company stated concurred in thoughts, those they that too strikes, disliked and it was hope, also, agreement an could be reached amicably.” negotiators unions ex- pressed this same sentiment on several occasions other during negotiations.

These statements, which normally one would expect agent union during make of negotiations course as a hopeful augury of their outcome rather than as a bind- ing agreement not to strike, scarcely vitiate the reason- ableness of the employer’s fear of a light strike in of the long history past strikes by same Further, unions. they cannot be deemed to render the employer’s fear of a strike unreasonable after negotiations had an reached impasse, particularly in view of the fact that a vote strike had been taken the unions’ membership, and the mem- bership rather than the representatives union had final authority to determine whether a strike place. would take

The fact that the assistant managers business of Local 85 and Local 374 of the Boilermakers “gave Union assur-

2This negotiator same also testified as follows: “Q. you say Did company crying was being not about able wage to afford yet you increase say did that in 1958 the company argument used the same and that a ten or a twelve week strike ensued at the conclusion eight of which an cent hour granted increase was years for each of company three and that the was still not out of business?

“A. Yes.” into brought any work called, were if a strike anees completed” be strike before yard Respondent’s aof threat unions’ offset deemed cannot likewise officials were men These consequences. strike involved. unions separate eight one only locals men few to a as assurances give could they most At all had And even yards. four company’s at two statements, which in these joined the unions at strikes wildcat subject been had ease, clause no-strike aby bound were the unions when a time the impugning without Therefore, contract. in their unrea- not surely was it agents, union these faith good assurance, notwithstanding this employer, the for sonable on work complete not might its that fear clause. by a no-strike not bound they were when ships offered unions the that the fact relies also The I have As contract. present of the extension a six-month contract caused have would out, this already pointed em- season. busiest employer’s during expire Had stratagem. this reject right perfect had ployer of their one achieved have would unions agreed, striking. necessity without objectives important have would the unions that it is clear token same By the accepted employer had strike agreed not Surely benefits. wages and increases proposals proposals, these reject right every had unrea- it was that show not would of them rejection its accede failure to upon fearing a strike based sonable demands. unions’ con- of the extension an indefinite offer Finally, con- Board’s for the basis unsupportable equally is an tract mean would presumably extension indefinite An clusion. could unions theory contract traditional under business local other one record in the evidence is some There assurance. gave a similar agent Surely notice.4 brief giving time or after any

strike at that such fearing reasonable would be timing place peculiarly arrangement hands. in the unions’ strike supply not does all this is that the record

The sum of substantial, evidence any let alone of, even scintilla employer’s Board that conclusion of the support this conclu- but, rather, unreasonable, of a strike was fear Erie Resistor Board v. irrational. Cf. Labor appears sion hold on I would therefore S. at 236. Corp., 373 U. completely was employer’s this record that justified. undisputed facts fact that the Board held on the fear of a strike was unreasonable the Board Appeals has affirmed

and that the Court determina reviewing does from preclude us States, 356 Public Service Comm’n v. United tion. See applied been 421. The standard that should have U. S. finding whether the Board’s Appeals the Court of was when the record supported by was substantial evidence v. Labor Corp. as a whole. Universal Camera viewed Lines, Board, Inc. Burlington Truck 340 S. 474. See U. States, Commerce 156, 168; v. 371 S. Interstate United U. Co., J-T “The Transport 81, Comm’n v. 368 U. S. 93. they must findings respect; Board’s are entitled to be aside when the record before a Court of nonetheless set Appeals clearly precludes being the Board’s decision from by testimony a fair justified estimate of the worth of the of judgment witnesses or its informed on matters within special competence its or both.” Universal Camera Board, v. Labor at Corp. supra, Indeed, 490. the Board report examiner, of trial here set aside the its 4 (3d 1957); Williston, 38, See 1 Contracts ed. cf. §§ Pacific Paper Pulp Manufacturers, Coast Association & 121 N. L. R. B. of 990, 993. evidence “that recognized Court this Camera Universal an when substantial less may be a conclusion supporting the observed has who examiner experienced

impartial, conclusions drawn has case with the lived witnesses reached he has when than Board's from different of Court The 496. S., at TJ. conclusion.” same this on affirmance summary in its view my Appeals by down laid standards misapplied grossly issue on us before properly case This Camera. Universal involves necessarily which question, legal a substantial review, such making In record. entire of a review reviewing first what weight proper give although we apply duty to our ignore cannot we decides, court sup- must findings Board’s statutory standard hold- Board’s Since evidence. substantial by ported plain as the contrary, on the but, supported, not so was ing reverse I would irrational, reveal, record of facts ground. this Appeals of the Court to deal unnecessary make case My view may lock whether question broad with pressure economic bring solely his out question position. his support bear compatible are of lockout types other decision as this one complex ais statute Workers Textile See today illustrate. decided cases 263; Labor ante, p. Co., Mfg. Darlington v. Union said This Court ante, p. Brown, v. Board strike types of certain legality problem situa unfolding variant be “revealed must activity evolutionary process “an requires tions” aas formula definitive quick, response, rational v. Labor Workers Electrical answer.” comprehensive Steel v. also see 674; S. U. lockouts. true of same workers, 362-363. supra, might of situation types from considerably one differ his lock out seek the other. This presents case the situation of an em ployer with a long history of union recognition and collec tive bargaining, confronted with a history past strikes, which locks out only after good-faith considerable negotia tion involving agreement and compromise on numerous issues, after a bargaining impasse has been reached, more than a week after prior contract has expired, and when faced with the threat of a strike at a time when it and the property of its customers can suffer unusual harm. Other cases in which the Board has held a lockout illegal have presented far different situations. For ex Quaker ample, in State Oil Refining Corp., supra, an em ployer locked out its employees the day after its con tract with the union expired although no impasse had been reached in the bargaining still in progress, no strike had been threatened the unions, which had never called a sudden strike during the 13 years they had bar gained with the employer, and the unions had offered to resubmit the employer’s proposals to its employees for a vote. See also Utah Plumbing Heating & Contrac tors Assn., 126 N. L. R. B. 973. These decisions of the Labor Board properly take into account, in determining the legality of lockouts under the labor statutes, such factors as the length, character, and history of the col lective bargaining relation between the union and the employer, as well as whether a bargaining impasse has been reached. Indeed, the Court itself seems to recog nize that there is a difference between locking out before a bargaining impasse has been reached and locking out after collective bargaining has been exhausted, for it limits its holding to lockouts in the latter type of situation without deciding the question of the legality of locking out before bargaining is exhausted. Since the examples of different lockout situations could be multiplied, logic Court’s limitation of its holding should lead it to recog nize that the problem of lockouts requires “an evolu-

338 formula,” definitive quick, “a not

tionary process,” its answer. generalizations sweeping chary should

The Court lockout with deal we When area. complex in this industrial weapons with dealing arewe strike, choice have generally parties While warfare. Insurance v. Board Labor see weapons, of economic both respect choice, 477, S. 361 U. Agents, While unrestricted. not is lockout, strike weapon the strike paid deference “the recognized have we Resistor, Erie Board v. Labor laws,” labor federal by motivated economically forms not all 235, at supra, labor under permissible even or protected are strikes 5 Moreover, Court.6 of this decisions prior or the statutes plainly is motive anti union prompted though Act,7 Relations Labor the National illegal under limit operate motive toas restrictions no similar Shoe Somerset v. Board Labor See a strike. legality ;317 2d Stremel, F. 141 Board v. Labor 681; Co., 111 F. 2d 2d 613. Inc., F. Classics, 193 v. Somerset Labor strikes upon imposed restrictions varieties by variant presented complexities reflect lockouts situations. factual diversity factual overlooks only not Court its statement lockout, types of among different (a)(1) §§ 8 under practices unfair governing rules fact recognition give proper not (3) does balancing this area] problem [in ultimate “[t]he picketing 5 organizational secondary boycott and g., See, e. ed.), 73 (1958 (b)(4) S. O. 141, 29 17. §158 61 Stat. restrictions. V). Supp. ed., (7) (1958 (b) (4) and 158 544, C. 542, 29 ü. S. §§ Stat. 245; 6 S. 336 U. v. Wisconsin Workers Automobile See Corp., S. 240. 306 U. Metallurgical Fansteel Board v. Labor 7 93; Textile Union, supra, at Drivers Board v. Truck Labor See 263, 268-269. Co., ante, p. at Mfg. Darlington v. Union Workers Board v. conflicting legitimate interests.” states Union, The Court Truck Drivers S. U. by anti- actually motivated employer conduct, (a)(3) unless (a)(1) § violate bias,8 § union does not bargain of collective “demonstrably so destructive interests ante, to union ing,” 309, prejudicial at or “so justification,” significant and so devoid of economic ante, need be shown. 311, at that no antiunion animus letter and substantially from both the departs This rule See, of the Court. spirit prior of numerous decisions Union, 96; at g., supra, e. Labor Board v. Truck Drivers Board, 324 S. Republic Corp. Aviation v. Labor U. Co., 105; 793; Labor Babcock & Wilcox 351 S. Board v. U. Sims, Inc., Labor Board & 379 S. 21. Burnup v. U. that test for These decisions demonstrate correct in determining (a)(1) whether has been violated §8 motive is involving cases not antiunion employer’s for justification whether the business outweighs action rights § the interference 7 involved. Board, In Republic Corp. supra, Aviation v. Labor example, a a holding the Court affirmed Board that company applied “no-solicitation” rule was invalid as to prevent solicitation of employees company property during periods when were as free do they pleased, not a because such rule was “demon- strably . . bargaining,” . destructive of collective simply significant because there was no employer justifi- showing cation for the rule there was a of union interest, though far short of a necessity, its abolition. Sims, also, Inc., See Labor v. Burnup supra. Board & (a)(3), 452, National Labor Act Relations 49 Stat. as §8 amended, (a) (3) provides 29 U. S. C. that it shall be an unfair §158 practice “by encourage discourage labor discrimination ... or membership any organization.” only type of discrim inatory motive with which we are here is concerned that discourages membership in a union. where cases (3) (a) §in applicable is test A similar misreads Court shown. is motive antiunion no Labor S. U. v. Radio Officers stating in- supra, Corp., Resistor Erie v. practices is whether (a) (3) § 8 under cases such test so interests union prejudicial inherently so “are spe- no justification economic significant devoid membership union discourage intent evidence cific Ante, at required.” animus antiunion other (3) (a)8§of application restrict did Radio Officers situa- extreme motive of antiunion devoid in cases in hold- Rather, test. Court's encompassed tions pre- isman rule common-law applicable ing his own consequences foreseeable intend sumed all (a)(3) § 8 reach extended Court actions, the foreseeable effect antiunion significant in which cases cases In such motive.

regardless might conduct that held Corp., Resistor Erie Court, the (3) where (a)8§ violate to Board the by determined “weigh- reasonable a from resulted determination Board’s activity in concerted of interests the ing [of] busi- his in operating interest the against balancing . . . [from] and manner a particular ness conse- intended the policy Act and the of light in the ends business the against rights employee upon quences 229. atS.,U. conduct.” by the to be served em- whether toas tests the that show cases These (3) (a) § 8 violates (a)(1) or 8§ violates conduct ployer’s come down motive antiunion of showing without legitimate the whether thing: same substantially the interference his justify the of interests economic “the involving test his of rights with —a Labor interests.” legitimate conflicting balancing of theAs at Union, supra, Drivers Truck v. Board function held, “[t]he have of this Court prior decisions a difficult often . . . balance . striking . . a] [such primarily committed Congress . . . responsibility, delicate limited subject Board, Relations Labor to the National Ibid. judicial review.” are reviewing courts not mean course, does

This, of giv- determining whether, their function abdicate has struck the Board ing due deference policy language consistently with balance Board Brown, supra; Board v. Act. See Labor Union, it mean does supra. Drivers Nor v. Truck rubber-stamp decisions are to reviewing courts in a particu- principles application Board where by substantial supported not lar is irrational or case prin- these Applying a whole. on the record as evidence I would presented, factual situation here ciples rule, fashioned carefully Board’s accept limited legitimate in- “conflicting weighing after the Board lockout does unions, employers terests” of against “safeguard unusual used to violate Act where where loss hazards or economic problems or operational believing that a strike ground there is reasonable Quaker Oil State or imminent.” . . threatened . [is] is consistent 337. This rule Corp., supra, at Refining actualities of upon the and based of the Act policies reject the deter- however, would, I relations. industrial this rule refusing apply mination of the bring by the record facts revealed undisputed for the case, the rule. clearly within this case desirability of, for, necessity In view conflicting interests variant legitimate weighing any simple not and cannot there is situations, from readily permissible demarks formula reach I being so, would not This lockout. impermissible which are deter- principles out in this case announce economically motivated of all legality minative impasse before or after lockouts whether the Court both view my In reached. been inadvisably have conclusions, opposite reaching confine I would Rather, here. so unnecessarily done by both the supported holding, simple decision our relations, that of industrial actualities record therefore, reasonable, was of a strike fear I would Board, which decisions settled under justified. of its the lockout approve,

Case Details

Case Name: American Ship Building Co. v. National Labor Relations Board

Court Name: Supreme Court of the United States

Date Published: Mar 29, 1965

Citation: 380 U.S. 300

Docket Number: 255

Court Abbreviation: SCOTUS