NLRB Holds That Employers May Lockout Full-Term Strikers While Allowing Nonstrikers and Crossovers to Remain Working

In Midwest Generation, the Board held that an employer did not violate Section 8(a)(3) -- which prohibits employers from discriminating against employees to discourage union membership -- when it locked out full-term strikers while allowing nonstrikers and crossovers to continue working. 343 NLRB No. 12 (2004). The Board found that the employer distinguished between the two groups of employees not because of union membership (or Section 7 activity), but rather because of a legitimate desire to place economic pressure where it would be most effective: on the employees who remained on strike until the union called it off.

The union and the employer in Midwest Generation were negotiating for a successor contract. The union called an economic strike in support of its bargaining demands. The vast majority of employees joined the strike. Eight employees refused to strike and remained at work (the nonstrikers). During the course of the strike, 47 striking employees crossed the picket line and returned to work (the crossovers). Eventually, the union ended the strike and made an unconditional offer to return to work. In response to the union’s offer, the employer instituted a partial lockout, refusing to let the full-term strikers return to work until the union agreed to a new collective bargaining agreement. The employer simultaneously allowing nonstrikers and crossovers to continue working.

The union filed a ULP charge, and the General Counsel issued a complaint alleging that the employer violated Section 8(a)(3) by discriminating between full term strikers on the one hand and nonstrikers and crossovers on the other.

The Board majority (Chairman Battista and Member Schaumber) held that the employer acted lawfully in discriminating between the two groups. The majority explained that a lockout violates Section 8(a)(3) only if the employer is motivated by antiunion animus. To determine whether antiunion animus motivated the employer’s partial lockout, the majority employed the framework set forth in NLRB v. Great Dane Trailers, 388 U.S. 26 (1967). Under the relevant part of that decision, the employer must first come forward with a “legitimate and substantial business justification” for its different treatment of employees. Only then must the Board’s General Counsel prove antiunion motivation. In the absence of proof of a legitimate and substantial business justification for the different treatment, the employer’s discrimination is unlawful.

The Board majority found that the employer established a legitimate and substantial business justification for its lockout: to apply economic pressure on the union to accept its bargaining demands. The majority further found that the employer established a legitimate and substantial business justification for the partial nature of its lockout: to pressure full-term strikers to abandon the union’s bargaining demands.

The Board majority then shifted the burden to the General Counsel to prove antiunion animus. The majority found that the General Counsel failed to satisfy his burden. The majority conceded that the employer discriminated between full-term strikers on one hand and nonstrikers and crossovers on the other. It found that this fact did not establish antiunion motivation. The majority explained that the employer had the legitimate motive of placing additional economic pressure on full-term strikers to achieve its bargaining goals. It was unnecessary for the employer to place similar economic pressure on nonstrikers and crossovers, argued the Board majority, because they had eschewed the strike weapon.

Member Walsh dissented. He found that the employer failed to satisfy its initial burden under Great Dane of establishing a legitimate and substantial business justification for the partial nature of its lockout. He noted that the employer tried to justify the partial nature on the ground that it was unnecessary to place economic pressure on nonstrikers and crossovers because they had eschewed the strike weapon. Walsh attacked this justification from two angles. First, he noted that the full-term strikers had also eschewed the strike weapon by terminating the strike and offering to return to work. Thus, there was no need to place particular pressure on them. Second, Walsh noted that the employer and the Board majority improperly assumed that nonstrikers and crossovers do not support the union’s bargaining demands. Walsh noted that employees may refuse to participate in a strike for reasons other than lack of support for a union’s bargaining demands. Thus, Walsh found that the employer failed to establish a legitimate reason for locking out the full-term strikers while allowing the nonstrikers and crossovers to continue working. Consequently, he voted to find that the employer violated Section 8(a)(3).

I think that Member Walsh has the better of the two arguments. The (allegedly) legitimate justification identified by the majority was the employer’s desire to place targeted pressure on those employees who support the union’s bargaining demands. The majority essentially finds that the employer legitimately assumed that full-term strikers support the union’s bargaining demands and that nonstrikers and crossovers do not (or support them to a lesser extent). This might be generally true as an empirical matter. However, exceptions to this general rule do exist. Employees may refuse to strike even though they support their union’s demands. Likewise, some employees may strike even though they do not support their union’s demands. Thus, there is not a perfect correlation between participation in a strike and support for a union’s demands or between rejection of a strike and lack of support for a union’s demands. Nevertheless, the majority’s decision allows employers to discriminate between employees based on their protected activity because of the questionable assumption that such a correlation exists.