MR. JUSTICE STEWART delivered the opinion of the Court.
The American Ship Building Company seeks review of a decision of the United States Court of Appeals for the District of Columbia Circuit enforcing an order of the National Labor Relations Board which found that the company had committed an unfair labor practice under §§ 8 (a) (1) and (3) of the National Labor Relations Act.
The American Ship Building Company operates four shipyards on the Great Lakes—at Chicago, at Buffalo, and at Toledo and Lorain, Ohio. The company is primarily engaged in the repairing of ships, a highly seasonal business concentrated in the winter months when the freezing of the Great Lakes renders shipping impossible. What limited business is obtained during the shipping season is frequently such that speed of execution is of the utmost importance to minimize immobilization of the ships.
Since 1952 the employer has engaged in collective bargaining with a group of eight unions. Prior to the negotiations here in question, the employer had contracted with the unions on five occasions, each agreement having been preceded by a strike. The particular chapter of the collective bargaining history with which we are concerned opened shortly before May 1, 1961, when the unions notified the company of their intention to seek modification of the current contract, due to expire on August 1.
At the initial bargaining meeting on June 6, 1961, the company took the position that its competitive situation would not allow increased compensation. The unions countered with demands for increased fringe benefits and some unspecified wage increase. Several meetings were held in June and early July during which negotiations focussed upon the fringe benefit questions without any substantial progress. At the last meeting, the parties resolved to call in the Federal Mediation and Conciliation
Further negotiations narrowed the dispute to five or six issues, all involving substantial economic differences. On July 31, the eve of the contract's expiration, the employer made a proposal; the unions countered with another, revived their proposal for a six-month extension, and proposed in the alternative that the existing contract, with its no-strike clause, be extended indefinitely with the terms of the new contract to be made retroactive to August 1.
Thus on August 9, after extended negotiations, the parties separated without having resolved substantial differences on the central issues dividing them and without having specific plans for further attempts to resolve them—a situation which the trial examiner found was an impasse. Throughout the negotiations, the employer displayed anxiety as to the unions' strike plans, fearing that the unions would call a strike as soon as a ship entered the Chicago yard or delay negotiations into the winter to
In light of the failure to reach an agreement and the lack of available work, the employer decided to lay off certain of its workers. On August 11 the employees received a notice which read: "Because of the labor dispute which has been unresolved since August 1, 1961, you are laid off until further notice." The Chicago yard was completely shut down and all but two employees laid off at the Toledo yard. A large force was retained at Lorain to complete a major piece of work there and the employees in the Buffalo yard were gradually laid off as miscellaneous tasks were completed. Negotiations were resumed shortly after these layoffs and continued for the following two months until a two-year contract was agreed upon on October 27. The employees were recalled the following day.
Upon claims filed by the unions, the General Counsel of the Board issued a complaint charging the employer with violations of §§ 8 (a) (1), (3), and (5).
A three-to-two majority of the Board rejected the trial examiner's conclusion that the employer could reasonably anticipate a strike. Finding the unions' assurances sufficient to dispel any such apprehension, the Board was able to find only one purpose underlying the layoff: a desire to bring economic pressure to secure prompt settlement 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 Board remotely suggest that the company's decision to lay off its employees was based either on union hostility or on a desire to avoid its bargaining obligations under the Act. The Board concluded that the employer "by curtailing its operations at the South Chicago yard with the consequent layoff of the employees, coerced employees in the exercise of their bargaining rights in violation of Section 8 (a) (1) of the Act,
The difference between the Board and the trial examiner is thus a narrow one turning on their differing assessments of the circumstances which the employer claims gave it reason to anticipate a strike. Both the Board and the examiner assumed, within the established pattern of Board analysis.
The Board has, however, exempted certain classes of lockouts from proscription. "Accordingly, it has held that lockouts are permissible to safeguard against . . . loss where there is reasonable ground for believing that a strike was threatened or imminent." Ibid. Developing this distinction in its rulings, the Board has approved lockouts designed to prevent seizure of a plant by a sitdown strike, Link-Belt Co., 26 N. L. R. B. 227; to forestall repetitive disruptions of an integrated operation by "quickie" strikes, International Shoe Co., 93 N. L. R. B. 907; to avoid spoilage of materials which would result from a sudden work stoppage, Duluth Bottling Assn., 48 N. L. R. B. 1335; and to avert the immobilization of automobiles brought in for repair, Betts Cadillac Olds, Inc., 96 N. L. R. B. 268. In another distinct class of cases the Board has sanctioned the use of the lockout by a multiemployer bargaining unit as a response to a whipsaw strike against one of its members. Buffalo Linen Supply Co., 109 N. L. R. B. 447, rev'd Sub nom. Truck Drivers Union v. Labor Board, 231 F.2d 110, rev'd, 353 U.S. 87.
In analyzing the status of the bargaining lockout under §§ 8 (a) (1) and (3) of the National Labor Relations Act, it is important that the practice with which we are here concerned be distinguished from other forms of temporary separation from employment. No one would deny that an employer is free to shut down his enterprise temporarily
To establish that this practice is a violation of § 8 (a) (1), it must be shown that the employer has interfered with, restrained, or coerced employees in the exercise of some right protected by § 7 of the Act. The Board's position is premised on the view that the lockout interferes with two of the rights guaranteed by § 7: the right to bargain collectively and the right to strike. In the Board's view, the use of the lockout "punishes" employees for the presentation of and adherence to demands made by their bargaining representatives and so coerces them in the exercise of their right to bargain collectively. It is important to note that there is here no allegation that the employer used the lockout in the service of designs inimical to the process of collective bargaining. There was no evidence and no finding that the employer was hostile to its employees' banding together for collective bargaining or that the lockout was designed to discipline
Moreover, there is no indication, either as a general matter or in this specific case, that the lockout will necessarily destroy the unions' capacity for effective and responsible representation. The unions here involved have vigorously represented the employees since 1952, and there is nothing to show that their ability to do so has been impaired by the lockout. Nor is the lockout one of those acts which are demonstrably so destructive of collective bargaining that the Board need not inquire into employer motivation, as might be the case, for example, if an employer permanently discharged his unionized staff and replaced them with employees known to be possessed of a violent antiunion animus. Cf. Labor Board v. Erie Resistor Corp., 373 U.S. 221. The lockout may well dissuade employees from adhering to the position which they initially adopted in the bargaining, but the right to bargain collectively does not entail any "right" to insist on one's position free from economic disadvantage. Proper analysis of the problem demands that the simple intention to support the employer's bargaining position as to compensation and the like be distinguished from a hostility to the process of collective bargaining which could suffice to render a lockout unlawful. See Labor Board v. Brown, ante, p. 278.
The Board has taken the complementary view that the lockout interferes with the right to strike protected under
Thus, we cannot see that the employer's use of a lockout solely in support of a legitimate bargaining position is in any way inconsistent with the right to bargain collectively or with the right to strike. Accordingly, we conclude
Section 8 (a) (3) prohibits discrimination in regard to tenure or other conditions of employment to discourage union membership. Under the words of the statute there must be both discrimination and a resulting discouragement of union membership. It has long been established that a finding of violation under this section will normally turn on the employer's motivation. See Labor Board v. Brown, ante, p. 278; Radio Officers' Union v. Labor Board, 347 U.S. 17, 43; Labor Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 46. Thus when the employer discharges a union leader who has broken shop rules, the problem posed is to determine whether the employer has acted purely in disinterested defense of shop discipline or has sought to damage employee organization. It is likely that the discharge will naturally tend to discourage union membership in both cases, because of the loss of union leadership and the employees' suspicion of the employer's true intention. But we have consistently construed the section 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. See, e. g., Labor Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 347. Such a construction of § 8 (a) (3) is essential if due protection is to be accorded the employer's right to manage his enterprise. See Textile Workers v. Darlington Mfg. Co., ante, p. 263.
This is not to deny that there are some practices which are inherently so prejudicial to union interests and so devoid of significant economic justification that no specific evidence of intent to discourage union membership or other antiunion animus is required. In some cases, it may be that the employer's conduct carries with it an inference of unlawful intention so compelling that it is
But this lockout does not fall into that category of cases arising under § 8 (a) (3) in which the Board may truncate its inquiry into employer motivation. As this case well shows, use of the lockout does not carry with it any necessary implication that the employer acted to discourage union membership or otherwise discriminate against union members as such. The purpose and effect of the lockout were only to bring pressure upon the union to modify its demands. Similarly, it does not appear that the natural tendency of the lockout is severely to discourage union membership while serving no significant employer interest. In fact, it is difficult to understand what tendency to discourage union membership or otherwise discriminate against union members was perceived by the Board. There is no claim that the employer locked out only union members, or locked out any employee simply because he was a union member; not is it alleged that the employer conditioned rehiring upon resignation from the union. It is true that the employees suffered economic disadvantage because of their union's insistence on demands unacceptable to the employer, but this is also true of many steps which an employer may take during a bargaining conflict, and the existence of an arguable possibility that someone may feel himself
To find a violation of § 8 (a) (3), then, the Board must find that the employer acted for a proscribed purpose. Indeed, the Board itself has always recognized that certain "operative" or "economic" purposes would justify a lockout. But the Board has erred in ruling that only these purposes will remove a lockout from the ambit of § 8 (a) (3), for that section requires an intention to discourage union membership or otherwise discriminate against the union. There was not the slightest evidence and there was no finding that the employer was actuated by a desire to discourage membership in the union as distinguished from a desire to affect the outcome of the particular negotiations in which it was involved. We recognize that the "union membership" which is not to be discouraged refers to more than the payment of dues and that measures taken to discourage participation in protected union activities may be found to come within the proscription. Radio Officers' Union v. Labor Board, supra, at 39-40. However, there is nothing in the Act which gives employees the right to insist on their contract demands, free from the sort of economic disadvantage which frequently attends bargaining disputes. Therefore, we conclude that where the intention proven is merely to bring about a settlement of a labor dispute on favorable terms, no violation of § 8 (a) (3) is shown.
Although neither § 8 (a) (1) nor § 8 (a) (3) refers specifically to the lockout, various other provisions of the National Labor Relations Act do refer to the lockout, and these references can be interpreted as a recognition of the legitimacy of the device as a means of applying economic pressure in support of bargaining positions. Thus 29 U. S. C. § 158 (d) (4) (1958 ed.) prohibits the use of a strike or lockout unless requisite notice procedures have been complied with; 29 U. S. C. § 173 (c) (1958 ed.) directs the Federal Mediation and Conciliation Service to seek voluntary resolution of labor disputes without resort to strikes or lockouts; and 29 U. S. C. §§ 176, 178 (1958 ed.), authorize procedures whereby the President can institute a board of inquiry to forestall certain strikes or lockouts. The correlative use of the terms "strike" and "lockout" in these sections contemplates that lockouts will be used in the bargaining process in some fashion. This is not to say that these provisions serve to define the permissible scope of a lockout by an employer. That, in the context of the present case, is a question ultimately to be resolved by analysis of §§ 8 (a) (1) and (3).
The Board has justified its ruling in this case and its general approach to the legality of lockouts on the basis of its special competence to weigh the competing interests of employers and employees and to accommodate these interests according to its expert judgment. "The Board has reasonably concluded that the availability of such a weapon would so substantially tip the scales in the employer's favor as to defeat the Congressional purpose of
There is of course no question that the Board is entitled to the greatest deference in recognition of its special competence in dealing with labor problems. In many areas its evaluation of the competing interests of employer and employee should unquestionably be given conclusive effect in determining the application of §§ 8 (a) (1), (3), and (5). However, we think that the Board construes its functions too expansively when it claims general authority to define national labor policy by balancing the competing interests of labor and management.
While a primary purpose of the National Labor Relations Act was to redress the perceived imbalance of economic power between labor and management, it sought to accomplish that result by conferring certain affirmative rights on employees and by placing certain enumerated restrictions on the activities of employers. The Act prohibited acts which interfered with, restrained, or coerced employees in the exercise of their rights to organize a union, to bargain collectively, and to strike; it proscribed
We are unable to find that any fair construction of the provisions relied on by the Board in this case can support its finding of an unfair labor practice. Indeed, the role assumed by the Board in this area is fundamentally inconsistent with the structure of the Act and the function of the sections relied upon. The deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress. Accordingly, we hold that an employer violates neither § 8 (a) (1) nor § 8 (a) (3) when, after a bargaining impasse has been reached, he temporarily shuts down his plant and lays off his employees for the sole purpose of bringing economic pressure to bear in support of his legitimate bargaining position.
MR. JUSTICE WHITE, concurring in the result.
The Court today holds that the use of economic weapons by an employer for the purpose of improving his bargaining position can never violate the broad provisions of §§ 8 (a) (1) and (3) of the NLRA and hence a bargaining lockout of employees in resistance to demands of a union is invariably exempt from the proscriptions of the Act. As my Brother GOLDBERG well points out, the Court applies legal standards that cannot be reconciled with decisions of this Court defining the Board's functions in applying these sections of the Act and does so without pausing to ascertain if the Board's factual premises are supported by substantial evidence. I also think the Court, in the process of establishing the legality of a bargaining lockout, overlooks the uncontradicted facts in this
In my view the issue posed in this case is whether an employer who in fact anticipates a strike may inform customers of this belief to protect his commercial relationship with customers and to safeguard their property, thereby discouraging business, and then lay off employees for whom there is no available work. I, like the trial examiner, think he may, and do not think this conduct can be impeached under §§ 8 (a) (1) and (3) by merely asserting that the employer and his customers were erroneous in believing a strike was imminent.
The Board, the Court of Appeals, and presumably this Court, accept all the findings of the trial examiner, except the finding that the employer's honest belief that a strike would occur had a reasonable basis in fact. The examiner found that at the time of the layoffs at the Chicago yard there was no work there and very little at the other yards, which remained open until all available work was completed. During past slack summer seasons a nucleus crew had been retained at the yards to perform emergency repair jobs for Ship Building's 14 or 15 regular customers. Absent a job, these employees also did maintenance work, but the accommodation of these regular customers and retention of their good will was the only reason for remaining open, the operations being otherwise unprofitable. The customers learned of the labor unrest at the yards through newspaper accounts and Ship Building's plant managers, who felt constrained to tell long-standing customers of the possibility of a strike during the course of repair work. The manager of the Buffalo yard was of the opinion that "the owner that brought the boat into the dock would have rocks in his head if he would have
Given the finding that the closing was due to lack of work at the Chicago yard, it is no answer to say, as the Board does, that there was no reasonable basis to anticipate a strike and hence the closing was an offensive bargaining lockout. Whether there was a reasonable basis to fear a strike or not, the fact remains that the employer, and its customers, did fear a strike, and consequently there was no work for the employees. It has long been the law that an employer is free to modify or shut down operations temporarily for business reasons unrelated to the exercise by his employees of statutory rights, and the reasonableness of an employer's response to business exigencies is not ordinarily subject to review. See PepsiCola Bottling Co., 145 N. L. R. B. 785 (1964); Associated General Contractors of America, Inc., 105 N. L. R. B. 767 (1953); cf. Fibreboard Paper Products v. Labor Board, 379 U.S. 203;
The Court, like the Board, assimilates the employer's conduct here to the bargaining lockout and restrikes the balance; it dismisses the actual justification for the closing with the assertion that the "examiner found . . . [the] closing was not due to lack of work. Despite similarly slack seasons in the past, the employer had for 17 years retained a nucleus crew to do maintenance work and remain ready to take such work as might come in." Ante, at 304. This is puzzling, since the examiner found precisely the contrary, and neither the Board nor the Court of Appeals took issue with these findings. The examiner said that a nucleus crew was maintained in the past only in the expectation of emergency work, the performance of such work being thought necessary to maintain customer good will. Because of the labor uncertainty and the decision that undertaking emergency jobs would jeopardize customer relations, there was no expectation of work during the summer of 1961, unlike past years. Since I think an employer's decision to lay off employees because of lack of work is not ordinarily barred by the Act, and since neither the Board nor the Court properly can ignore this claim, I would reverse the Board's order, but without reaching out to decide an issue not at all presented by this case.
Since the Court does rule on the status of the bargaining lockout under the National Labor Relations Act. I feel constrained to state my views. This Court has long recognized that the Labor Relations Act "did not undertake the impossible task of specifying in precise and unmistakable language each incident which would constitute an unfair labor practice," but "left to the Board the
The Board has balanced these interests here—the value of the lockout as an economic weapon against its impact on protected concerted activities, including the right to strike, for which the Act has special solicitude, Labor Board v. Erie Resistor Corp., 373 U.S. 221, 234—and has determined that the employer's interest in obtaining a bargaining victory does not outweigh the damaging consequences of the lockout. It determined that for an employer to deprive employees of their livelihood because of demands made by their representatives and in order to compel submission to the employer's demands, coerces employees in their exercise of the right to bargain collectively and discourages resort to that right. And this interferes with the right to strike, sharply reducing the effectiveness of that weapon and denying the union control over the timing of the economic contest. The Court rejects this reasoning on the ground that the lockout is not conduct "demonstrably so destructive of collective bargaining that the Board need not inquire into employer motivation." Ante, at 309. Since the employer's true motive is to bring about settlement of the dispute on favorable terms, there can be no substantial discouragement of union membership or interference with concerted activities. And the right to strike is only the right to cease work, which the lockout only encourages rather than displaces.
This tour de force denies the Board's assessment of the impact on employee rights and this truncated definition
If the Court means what it says today, an employer may not only lock out after impasse consistent with §§ 8 (a) (1) and (3), but replace his locked-out employees with temporary help, cf. Labor Board v. Brown, ante, p. 278, or perhaps permanent replacements, and also lock out long before an impasse is reached. Maintaining operations during a labor dispute is at least equally as important an interest as achieving a bargaining victory, see
The balance and accommodation of "conflicting legitimate interests" in labor relations does not admit of a simple solution and a myopic focus on the true intent or motive of the employer has not been the determinative standard of the Board or this Court. As the Court points out, there are things an employer may do for business reasons which are inconsistent with a rigid or literal interpretation of employee rights under the Act, such as the right to hire strike replacements. Labor Board v. Mackay Radio & Telegraph Co., 304 U.S. 333. But there are just as clearly others which he may not. Republic
The Board's role in this area is a "delicate task, reflected in part in decisions of this Court, of weighing the interests of employees in concerted activity against the interest of the employer in operating his business in a particular manner." Erie Resistor, 373 U. S., at 229. Its decisions are not immune from attack in this Court. Its findings must be supported by substantial evidence and its explication must fit the case before it, be adequate, and be based upon the policy of the Act and an acceptable reading of industrial realities. I would reverse the Board's decision here because it has not articulated a rational connection between the facts found and the decision made. "This is not to deprecate, but to vindicate (see Phelps Dodge Corp. v. Labor Board, 313 U.S. 177, 197), the administrative process, for the purpose of the rule is to avoid `propel[ling] the court into the domain which Congress has set aside exclusively for the administrative agency.' 332 U. S., at 196." Burlington Truck
MR. JUSTICE GOLDBERG, with whom THE CHIEF JUSTICE joins, concurring in the result.
I concur in the Court's conclusion that the employer's lockout in this case was not a violation of either § 8 (a) (1) or § 8 (a) (3) of the National Labor Relations Act, 49 Stat. 452, as amended, 29 U. S. C. §§ 158 (a) (1) and (3) (1958 ed.), and I therefore join in the judgment reversing the Court of Appeals. I reach this result not for the Court's reasons, but because, from the plain facts revealed by the record, it is crystal clear that the employer's lockout here was justifiable. The very facts recited by the Court in its opinion show that this employer locked out its employees in the face of a threatened strike under circumstances where, had the choice of timing been left solely to the unions, the employer and its customers would have been subject to economic injury over and beyond the loss of business normally incident to a strike upon the termination of the collective bargaining agreement. A lockout under these circumstances has been recognized by the Board itself to be justifiable and not a violation of the labor statutes. Betts Cadillac Olds, Inc., 96 N. L. R. B. 268; see Packard Bell Electronics Corp., 130 N. L. R. B. 1122; International Shoe Co., 93 N. L. R. B. 907; Duluth
The trial examiner for the Labor Board found that the employer reasonably and "honestly believed that a strike might take place immediately, or when a vessel was docked, or that bargaining would be delayed until closer to the winter months when Respondent would be more vulnerable," 142 N. L. R. B., at 1382, and that the company "by its actions, therefore, did not violate . . . the Act," 142 N. L. R. B., at 1383. The Board did not dispute the trial examiner's finding that the employer in fact believed that a strike was threatened. Nor did it deny that if the employer reasonably believed that "there was a real strike threat," the lockout would be justified. 142 N. L. R. B., at 1364. The Board, however, rejected the ultimate finding of the trial examiner because it disagreed with his conclusion that the employer "had reasonable grounds to fear a strike." (Emphasis added.) 142 N. L. R. B., at 1363. The Court of Appeals in a single sentence sustained the Board's holding on this point concluding, without detailed analysis, "that the Board's finding that respondent had no reasonable basis for fearing a strike is not without the requisite record support." 331 F.2d 839, 840. In my view the Board's conclusion that the employer's admitted fear of a strike was unreasonable is not only without the requisite record support but is at complete variance with "the actualities of industrial relations," Labor Board v. Steelworkers, 357 U.S. 357, 364, which the Board is to take into account in effectuating the national labor policy.
We do not deal with a case in which the facts are disputed and the Board has resolved testimonial controversies. The facts here are undisputed, and a review of them demonstrates that the employer's fear of a strike at a time strategically selected by the unions to cause
The employer company is primarily engaged in repairing ships and operates four shipyards on the Great Lakes at Buffalo, New York, Lorain and Toledo, Ohio, and South Chicago, Illinois. As the Court points out, the employer's business is highly seasonal, concentrated in the winter months when the Great Lakes are frozen over and shipping is impossible. Speed is of the utmost importance in this business, for the shipping season is short and the tie-up of a ship for several weeks during the season or a delay in a ship's re-entry into service in the spring produces a severe economic impact. A work stoppage while a ship is in the yards can have serious economic consequences both for the employer and for his customers. Customers are justifiably wary of entrusting their ships to the yards at a time when a collective bargaining dispute is unresolved. For this reason the expiration date of a contract in situations such as this is a vital issue in collective bargaining. The employer seeks an expiration date during the slack season; the union seeks an expiration date during the busy season. In this case as a result of past bargaining, the employer's contract expired on August 1, rather than during the busy season.
From 1952 until 1961, when the negotiations now under consideration began, the employer had negotiated five times with the eight unions here involved, and it had experienced exactly one strike per negotiation. The strikes in 1952, 1953, 1955, and 1956 lasted about three weeks each, and the 1958 strike continued for 10 weeks. In 1955 employees had engaged in a slowdown before the agreement expired and thereby caught an $8,000,000 ship in the yard, the use of which was lost to the customer for four weeks during its busiest season. In February 1961, at the height of the busy season, wildcat work stoppages occurred in Chicago and Buffalo.
Although the contract expired on August 1, the unions did not call a strike on that date but continued to work
Faced with the situation of an expired contract and the unions free to strike at any time, in particular at a time of their own choosing during the busy season, or whenever the yard was filled with ships, the employer decided to shut down the Chicago yard completely and lay off all but two employees at Toledo. Notices were issued to employees at Chicago, Toledo, and to some in Buffalo, which stated, "Because of the labor dispute which has been unresolved since August 1, 1961, you are laid off until further notice." Negotiations were resumed after this lockout and continued until agreement was reached on October 27. The laid off employees were then recalled to work. Since then the parties have engaged in other negotiations and have agreed upon contracts without either strike or lockout.
On this record the trial examiner held that the employer reasonably feared that the unions would strike when the time was ripe. He found that the employer reasonably believed that:
"[t]he Unions' strategy was:
Accordingly the trial examiner held that no unfair labor practice was committed. This holding followed settled Board doctrine that "lockouts are permissible to safeguard against unusual operational problems or hazards or economic loss where there is reasonable ground for believing that a strike [is] . . . threatened or imminent." Quaker State Oil Refining Corp., supra, at 337.
The Board overturned the trial examiner's ultimate holding, reaching what, on this record, is a totally unsupportable conclusion—that the employer's fear of a strike was unreasonable. The Board rested its conclusion upon the grounds that "the Unions made every effort to convey to the Respondent their intention not to strike; and they also gave assurances that if a strike were called, any work brought into Respondent's yard before the strike would be completed. The Unions further offered to extend the existing contract [which contained a no-strike provision] for 6 months, or indefinitely, until contract terms were reached . . . ." 142 N. L. R. B., at 1364. Upon analysis it is clear that none of these grounds will support the Board's conclusion that the employer had no reasonable basis to fear a strike.
The Board's finding that "the Unions made every effort to convey to the Respondent their intention not to strike" is based upon statements made by union negotiators during the course of the negotiations. The chief negotiator for the unions testified that on the first day of negotiations, "I stated that it was my understanding that
These statements, which one would normally expect a union agent to make during the course of negotiations as a hopeful augury of their outcome rather than as a binding agreement not to strike, scarcely vitiate the reasonableness of the employer's fear of a strike in light of the long history of past strikes by the same unions. Further, they cannot be deemed to render the employer's fear of a strike unreasonable after the negotiations had reached an impasse, particularly in view of the fact that a strike vote had been taken by the unions' membership, and the membership rather than the union representatives had final authority to determine whether a strike would take place.
The fact that the assistant business managers of Local 85 and Local 374 of the Boilermakers Union "gave assurances
The Board also relies on the fact that the unions offered a six-month extension of the present contract. As I have already pointed out, this would have caused the contract to expire during the employer's busiest season. The employer had a perfect right to reject this stratagem. Had it agreed, the unions would have achieved one of their important objectives without the necessity of striking. By the same token it is clear that the unions would have agreed not to strike had the employer accepted their proposals for increases in wages and benefits. Surely the employer had every right to reject these proposals, and its rejection of them would not show that it was unreasonable in fearing a strike based upon its failure to accede to the unions' demands.
Finally, the offer of an indefinite extension of the contract is an equally unsupportable basis for the Board's conclusion. An indefinite extension presumably would mean under traditional contract theory that the unions could
The sum of all this is that the record does not supply even a scintilla of, let alone any substantial, evidence to support the conclusion of the Board that the employer's fear of a strike was unreasonable, but, rather, this conclusion appears irrational. Cf. Labor Board v. Erie Resistor Corp., 373 U.S. 221, at 236. I would therefore hold on this record that the employer's lockout was completely justified.
The fact that the Board held on the undisputed facts that the employer's fear of a strike was unreasonable and that the Court of Appeals has affirmed the Board does not preclude us from reviewing this determination. See Public Service Comm'n v. United States, 356 U.S. 421. The standard that should have been applied by the Court of Appeals was whether the Board's finding was supported by substantial evidence when the record was viewed as a whole. Universal Camera Corp. v. Labor Board, 340 U.S. 474. See Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168; Interstate Commerce Comm'n v. J-T Transport Co., 368 U.S. 81, 93. "The Board's findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both." Universal Camera Corp. v. Labor Board, supra, at 490. Indeed, the Board here set aside the report of its trial examiner, and in
My view of this case would make it unnecessary to deal with the broad question of whether an employer may lock out his employees solely to bring economic pressure to bear in support of his bargaining position. The question of which types of lockout are compatible with the labor statute is a complex one as this decision and the other cases decided today illustrate. See Textile Workers Union v. Darlington Mfg. Co., ante, p. 263; Labor Board v. Brown, ante, p. 278. This Court has said that the problem of the legality of certain types of strike activity must be "revealed by unfolding variant situations" and requires "an evolutionary process for its rational response, not a quick, definitive formula as a comprehensive answer." Electrical Workers v. Labor Board, 366 U.S. 667, 674; see also Labor Board v. Steelworkers, supra, 362-363. The same is true of lockouts.
The types of situation in which an employer might seek to lock out his employees differ considerably one from
The Court should be chary of sweeping generalizations in this complex area. When we deal with the lockout and the strike, we are dealing with weapons of industrial warfare. While the parties generally have their choice of economic weapons, see Labor Board v. Insurance Agents, 361 U.S. 477, this choice, with respect to both the strike and the lockout, is not unrestricted. While we have recognized "the deference paid the strike weapon by the federal labor laws," Labor Board v. Erie Resistor, supra, at 235, not all forms of economically motivated strikes are protected or even permissible under the labor statutes
The Court not only overlooks the factual diversity among different types of lockout, but its statement of the rules governing unfair labor practices under §§ 8 (a) (1) and (3) does not give proper recognition to the fact that "[t]he ultimate problem [in this area] is the balancing
These decisions demonstrate that the correct test for determining whether § 8 (a) (1) has been violated in cases not involving an employer antiunion motive is whether the business justification for the employer's action outweighs the interference with § 7 rights involved. In Republic Aviation Corp. v. Labor Board, supra, for example, the Court affirmed a Board holding that a company "no-solicitation" rule was invalid as applied to prevent solicitation of employees on company property during periods when employees were free to do as they pleased, not because such a rule was "demonstrably. . . destructive of collective bargaining," but simply because there was no significant employer justification for the rule and there was a showing of union interest, though far short of a necessity, in its abolition. See also, Labor Board v. Burnup & Sims, Inc., supra.
These cases show that the tests as to whether an employer's conduct violates § 8 (a) (1) or violates § 8 (a) (3) without a showing of antiunion motive come down to substantially the same thing: whether the legitimate economic interests of the employer justify his interference with the rights of his employees—a test involving "the balancing of the conflicting legitimate interests." Labor Board v. Truck Drivers Union, supra, at 96. As the prior decisions of this Court have held, "[t]he function of striking . . . [such a] balance . . . often a difficult and
This, of course, does not mean that reviewing courts are to abdicate their function of determining whether, giving due deference to the Board, the Board has struck the balance consistently with the language and policy of the Act. See Labor Board v. Brown, supra; Labor Board v. Truck Drivers Union, supra. Nor does it mean that reviewing courts are to rubber-stamp decisions of the Board where the application of principles in a particular case is irrational or not supported by substantial evidence on the record as a whole. Applying these principles to the factual situation here presented, I would accept the Board's carefully limited rule, fashioned by the Board after weighing the "conflicting legitimate interests" of employers and unions, that a lockout does not violate the Act where used to "safeguard against unusual operational problems or hazards or economic loss where there is reasonable ground for believing that a strike [is] . . . threatened or imminent." Quaker State Oil Refining Corp., supra, at 337. This rule is consistent with the policies of the Act and based upon the actualities of industrial relations. I would, however, reject the determination of the Board refusing to apply this rule to this case, for the undisputed facts revealed by the record bring this case clearly within the rule.
In view of the necessity for, and the desirability of, weighing the legitimate conflicting interests in variant lockout situations, there is not and cannot be any simple formula which readily demarks the permissible from the impermissible lockout. This being so, I would not reach out in this case to announce principles which are determinative of the legality of all economically motivated lockouts whether before or after a bargaining impasse has
National Labor Relations Act, as amended, § 8 (a), 61 Stat 140, 29 U. S. C. § 158 (a) (1958 ed.): "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.): "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. . . ."
"Employees shall have the right to organize and join labor organizations, and to engage in concerted activities, either in labor organizations or otherwise, for the purposes of organizing and bargaining collectively through representatives of their own choosing or for other purposes of mutual aid or protection." Ibid.
"It shall be an unfair labor practice [f]or employees to attempt, by interference or coercion, to impair the exercise by employers of the right to join or form employer organizations and to designate representatives of their own choosing for the purpose of collective bargaining." 1 Leg. Hist. 1087.
"It shall be an unfair labor practice [f] or an employer to attempt, by interference or coercion, to impair the exercise by employees of the right to form or join labor organizations, to designate representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection." Ibid.
"Q. Did you say that the company was crying about not being able to afford a wage increase and yet did you say that in 1958 the company used the same argument and that a ten or a twelve week strike ensued at the conclusion of which an eight cent an hour increase was granted for each of three years and that the company was still not out of business?