NLRB v. Brown

Supreme Court of the United States · 1965 · Labor Law

Labor LawNational Labor Relations ActLockoutsMultiemployer bargainingWhipsaw strikesTemporary replacements§ 8(a)(1)§ 8(a)(3)

Facts

Five operators of six retail food stores in Carlsbad, New Mexico, bargained for many years as a multiemployer group with Local 462. After negotiations stalled over wages, the union authorized a strike and then struck one employer, Food Jet, in a whipsaw strike. The other employers immediately locked out their represented employees, stating they would be recalled when the strike ended, and all stores, including the struck employer, continued operating with management personnel, relatives, and temporary replacements who were expressly told their employment would end when the dispute ended. When agreement was reached, the employers dismissed the temporary replacements and restored the strikers and locked-out employees to their jobs.

Issue

Whether nonstruck members of a multiemployer bargaining unit violate NLRA §§ 8(a)(1) and 8(a)(3) by locking out their employees and continuing operations with temporary replacements in response to a whipsaw strike against another member, absent independent evidence of antiunion motive. Also, whether the Board could infer unlawful intent from that conduct alone.

Rule

Employer conduct may be found unlawful without specific proof of motive only when it is inherently or demonstrably destructive of employee rights and not justified by significant or important business ends. Where the tendency to discourage union membership is comparatively slight and the conduct is reasonably adapted to legitimate business ends or business exigencies, violations of §§ 8(a)(1) and 8(a)(3) require independent evidence of improper subjective antiunion motive.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Four seafood wholesalers in Portland, Maine, have long bargained as a multiemployer group with Local 88. After negotiations stall, the union strikes only Harbor Crest Seafood, and the other three firms lock out their represented employees, keep operating with supervisors and expressly temporary hires, and reinstate the locked-out workers when the dispute ends.

If the Board finds an unfair labor practice based solely on the lockout plus continued operations with temporary replacements, how should a reviewing court most likely rule?

Explanation. The majority held that, in a multiemployer bargaining dispute, nonstruck employers may respond to a whipsaw strike by locking out represented employees and continuing operations with temporary replacements when that conduct is reasonably adapted to the legitimate business end of preserving the multiemployer unit. Because such conduct is not inherently destructive of employee rights, the Board cannot infer illegality from the conduct alone; it needs independent evidence of antiunion motive.