Lead Opinion
delivered the opinion of the Court.
The respondents, who are members of a multiemployer bargaining group, locked out their employees in response
Five operators of six retail food stores in Carlsbad, New Mexico, make up the employer group. The stores had bargained successfully on a group basis for many years with Local 462 of the Retail Clerks International Association. Negotiations for a new collective-bargaining agreement to replace the expiring one began in January 1960. Agreement was reached by mid-February on all
The Board and the Court of Appeals agreed that the case was to be decided in light of our decision in the so-called Buffalo Linen case, Labor Board v. Truck Drivers Union,
The Board’s decision does not rest upon independent evidence that the respondents acted either out of hostility toward the Local or in reprisal for the whipsaw strike. It rests upon the Board’s appraisal that the respondents’ conduct carried its own indicia of unlawful intent, thereby establishing, without more, that the conduct constituted an unfair labor practice. It was disagreement with this appraisal, which we share, that led the Court of Appeals to refuse to enforce the Board’s order.
It is true that the Board need not inquire into employer motivation to support a finding of an unfair labor practice where the employer conduct is demonstrably destructive of employee rights and is not justified by the service of significant or important business ends. See, e. g., Labor
We begin with the proposition that the Act does not constitute the Board as an “arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands.” Labor Board v. Insurance Agents,
In the circumstances of this case, we do not see how the continued operations of respondents and their use of temporary replacements imply hostile motivation any more than the lockout itself; nor do we see how they are inherently more destructive of employee rights. Rather, the compelling inference is that this was all part and parcel of respondents’ defensive measure to preserve the multiemployer group in the face of the whipsaw strike. Since Food Jet legitimately continued business operations, it is only reasonable to regard respondents’ action as evincing concern that the integrity of the employer group was threatened unless they also managed to stay open for business during the lockout. For with Food Jet open for business and respondents’ stores closed, the prospect that the whipsaw strike would succeed in breaking up the employer association was not at all fanciful. The retail food industry is very competitive and repetitive patronage is highly important. Faced with the prospect of a loss of patronage to Food Jet, it is logical that respondents should have been concerned that one or more of their number might bolt the group and come to terms with the Local, thus destroying the common front essential to multiemployer bargaining. The Court of Appeals correctly pictured the respondents’ dilemma in saying,
Nor are we persuaded by the Board’s argument that justification for the inference of hostile motivation appears in the respondents’ use of temporary employees rather than some of the regular employees. It is not commonsense, we think, to say that the regular employees were “willing to work at the employers’ terms.” 137 N. L. R. B., at 76. It seems probable that this “willingness” was motivated as much by their understandable desire to further the objective of the whipsaw strike — to break through the employers’ united front by forcing Food Jet to accept the Local’s terms — as it was by a desire to work for the employers under the existing unacceptable terms. As the Board’s dissenting members put it, “These employees are willing only to receive wages while their brethren in the rest of the associationwide unit are exerting whipsaw pressure on one employer to gain benefits that will ultimately accrue to all employees in the asso-ciationwide unit, including those here locked out.” 137 N. L. R. B., at 78. Moreover, the course of action to which the Board would limit the respondents would force them into the position of aiding and abetting the success of the whipsaw strike and consequently would render “largely illusory,” 137 N. L. R. B., at 78-79, the right of lockout recognized by Buffalo Linen; the right would be meaningless if barred to nonstruck stores that find it necessary to operate because the struck store does so.
Nor does the record show any basis for concluding that respondents violated § 8 (a) (3). Under that section both discrimination and a resulting discouragement of union membership are necessary, but the added element of unlawful intent is also required. In Buffalo Linen itself the employers treated the locked-out employees less favorably because of their union membership, and this may have tended to discourage continued membership, but we rejected the notion that the use of the lockout violated the statute. The discriminatory act is not by itself unlawful unless intended to prejudice the employees’ position because of their membership in the union; some element of antiunion animus is necessary. See Radio Officers’ Union v. Labor Board,
We recognize that, analogous to the determination of unfair practices under § 8 (a) (1), when an employer practice is inherently destructive of employee rights and is not justified by the service of important business ends, no specific evidence of intent to discourage union membership is necessary to establish a violation of §8 (a)(3). This principle, we have said, is “but an application of the common-law rule that a man is held to intend the foreseeable consequences of his conduct.” Radio Officers’ Union v. Labor Board, supra, at 45. For example, in Labor Board v. Erie Resistor Corp., supra, we held that an employer’s action in awarding superseniority to employees who worked during a strike was discriminatory conduct that carried with it its own indicia of improper intent. The only reasonable inference that could be drawn by the Board from the award of superseniority— balancing the prejudicial effect upon the employees against any asserted business purpose — was that it was directed against the striking employees because of their union membership; conduct so inherently destructive of employee interests could not be saved from illegality by an asserted overriding business purpose pursued in good faith. But where, as here, the tendency to discourage union membership is comparatively slight, and the em
We agree with the Court of Appeals that respondents’ conduct here clearly fits into the latter category, where actual subjective intent is determinative, and where the Board must find from evidence independent of the mere conduct involved that the conduct was primarily motivated by an antiunion animus. While the use of temporary nonunion personnel in preference to the locked-out union members is discriminatory, we think that any-resulting tendency to discourage union membership is comparatively remote, and that this use of temporary personnel constitutes a measure reasonably adapted to the effectuation of a legitimate business end. Here discontent on the part of the Local’s membership in all likelihood is attributable largely to the fact that the membership was locked out as the result of the Local’s whipsaw stratagem. But the lockout itself is concededly within the rule of Buffalo Linen. We think that the added dissatisfaction, with its resultant pressure on membership, attributable to the fact that the nonstruck employers remain in business with temporary replacements is comparatively insubstantial. First, the replacements were expressly used for the duration of the labor dispute only; thus, the displaced employees could not have looked upon the replacements as threatening their jobs. At most the union would be forced to capitulate and return its members to work on terms which, while not as desirable as hoped for, were still better than under the old contract.
When the resulting harm to employee rights is thus comparatively slight, and a substantial and legitimate business end is served, the employers’ conduct is prima facie lawful. Under these circumstances the finding of an unfair labor practice under § 8 (a) (3) requires a showing of improper subjective intent. Here, there is no assertion by either the union or the Board that the respondents were motivated by antiunion animus, nor is there any evidence that this was the case. On the contrary, the background of the employer association’s relations with the union and all the circumstances of the respondents’ behavior during the dispute tend to support the contrary conclusion: the history of labor relations between the employers and the Local divulges that the relationship has always been more than amicable;
It is argued, finally, that the Board’s decision is within the area of its expert judgment and that, in setting it aside, the Court of Appeals exceeded the authorized scope of judicial review. This proposition rests upon our statement in Buffalo Linen that in reconciling the conflicting interests of labor and management the Board’s determination is to be subjected to “limited judicial review.”
Courts must, of course, set aside Board decisions which rest on an “erroneous legal foundation.” Labor Board v. Babcock & Wilcox Co., supra, at 112-113. Congress has not given the Board untrammelled authority to catalogue which economic devices shall be deemed freighted with indicia of unlawful intent. Labor Board v. Insurance Agents, supra, at 498. In determining here that the respondents’ conduct carried its own badge of improper motive, the Board’s decision, for the reasons stated, misapplied the criteria governing the application of §§ 8 (a) (1) and (3). Since the order therefore rested on an erroneous legal foundation, the Court of Appeals properly refused to enforce it.
Affirmed
Notes
National Labor Relations Act, as amended, §8 (a), 61 Stat. 140, 29 U. S. C. § 158 (a) (1958 ed.) provides: “It shall be an unfair labor practice for an employer—
“(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
“(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . .”
National Labor Relations Act, as amended, § 7, 61 Stat. 140, 29 U. S. C. § 157 (1958 ed.) provides: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment . . . .”
Food Jet used supervisory personnel and hired some “sack boys”; respondent Safeway Stores, which operated two stores in Carlsbad, closed one and transferred its managerial personnel to the other; respondent Thrifty Way Food Stores used management personnel and their wives and also hired some part-time “box boys”; respondent Brown Food Store relied on management personnel and their relatives, and a “sack boy” transferred from an out-of-town branch store; respondent Cashway Food Stores also relied on management personnel and their relatives and some transferees from out-of-town branches.
See brief for the National Labor Relations Board in American Ship Building Co. v. Labor Board, No. 255, post, p. 300, also decided today, at p. 17. See also 76 Harv. L. Rev. 1494, 1497.
For a history of rejection by Congress of proposals to limit or outlaw multiemployer bargaining see Buffalo Linen,
This is evident from the authorities cited in Buffalo Linen,
In Labor Board v. Babcock & Wilcox Co.,
We do not here decide whether the case would be the same had the struck employer exercised its prerogative to hire permanent replacements for the strikers under our rule in Labor Board v. Mackay Radio & Telegraph Co.,
Concurrence Opinion
concurring.
I agree with the Court that, given the Buffalo Linen case, Labor Board v. Truck Drivers Union, 353 U. S.
As the Court seems to recognize, ante, p. 292, n. 6, this would be an entirely different case had the nonstruck employers locked out their employees and hired permanent replacements even if the struck employer had exercised his right to hire permanent replacements under the doctrine of Labor Board v. Mackay Radio & Telegraph Co.,
Dissenting Opinion
dissenting.
I cannot agree with the severe restrictions which the Court imposes on the Board’s role in determining the employer conduct banned by §§ 8 (a)(1) and (3) of the NLRA. This Court has long recognized that “[a] statute expressive of such large public policy as that on which the National Labor Relations Board is based must be broadly phrased and necessarily carries with it the task of administrative application,” Phelps Dodge Corp. v. Labor Board,
The Court reasons that Buffalo Linen gave the non-struck employer in a multiemployer unit a “right” to lock out whenever a member of the unit is struck so that a parity of economic advantage or disadvantage between the struck and nonstruck employers can be maintained. In order to maintain parity where the struck employer hires replacements, the nonstruck employers must also be free to hire replacements, lest the right to lock out to protect the unit be illusory. And they need not offer these jobs to the locked-out employees desiring to work, lest the parity between the struck and nonstruck employers be lost and the right to lock out be meaningless. If this reasoning is sound, the nonstruck employers can not only lock out employees who belong to the union because of their union membership but also hire permanent as well as temporary nonunion replacements whenever the struck employer hires such replacements, for parity may well so require. But I cannot accept this reasoning.
One, Buffalo Linen established no unqualified “right” of employers in a multiemployer unit to lock out. Rather it held that the Board was well within the policy and
Two, the threat to the integrity of the multiemployer unit, the consideration that was decisive in Buffalo Linen, is obviously very different where the struck employer continues operations with replacements; it certainly cannot be assumed that the struck employer operating with replacements is at the same disadvantage vis-á-vis the nonstruck employers as the employer in Buffalo Linen whose operations were totally shut down by the union. Indeed, there was no showing here that the struck employer was substantially disadvantaged at all, and the Board found that there was “no economic necessity . . . for the other members shutting down.” 137 N. L. R. B. 73, at 77. The Court makes irrelevant the consideration that justified the lockout in Buffalo Linen — the effect of the single employer strike on the unit — on the faulty premise that Buffalo Linen established the nonstruck members’ right to lock out. Neither the Board nor this Court said the right to lock out ineluctably follows from a single employer strike.
Three, the disparity between the struck employer who resumes operations and the nonstruck employers who choose to lock out to maintain a united front is caused by the unilateral action of one of the employer members of the unit and not by the union’s whipsawing tactic. The integrity of the multiemployer unit may be important,
Four, the Court asserts that the right of nonstruck employers to hire temporary replacements, and to refuse to hire union men, is but a concomitant of the right to lock out to preserve the multiemployer group. This sanctification of the multiemployer unit ignores the fundamental rule that an employer may not displace union members with nonunion members solely on account of union membership, the prototype of discrimination under § 8 (a)(3), Labor Board v. Mackay Radio & Telegraph Co.,
Finally, I cannot agree with the Court’s fundamental premise on which its balance of rights is founded: that a lockout followed by the hiring of nonunion men to operate the plant has but a “slight” tendency to discourage union membership, which includes participation in union activities, Radio Officers’ Union v. Labor Board,
“Although the Act protects the right of the employees to strike in support of their demands, this protection is not so absolute as to deny self-help by employers when legitimate interests of employees and employers collide. Conflict may arise, for example, between the right to strike and the interest of small employers in preserving multi-employer bargaining .... The ultimate problem is the balancing of the conflicting legitimate interests. The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.” Buffalo Linen,353 U. S. 87 , 96.
This is especially so where integrity of a multiemployer bargaining unit is the principal factor to. be considered, since “the compelling conclusion is that Congress . . . ‘intended to leave to the Board’s specialized judgment the inevitable questions concerning multi-employer bargaining bound to arise in the future.’ ” Ibid. ' I think the Court now repudiates this decision and assumes for itself the “delicate task ... of weighing the interests of employees in concerted activity against the interest of the employer in operating his business in a particular manner.” Erie Resistor,