Seventh Circuit Denies Enforcement in Midwest Generation

The Seventh Circuit refused to enforce the NLRB's decision in Midwest Generation, 343 NLRB No. 12 (2004), which had dismissed an allegation that an employer violated Section 8(a)(3) when, after a union's unconditional offer to stop striking, it locked out full-term strikers while allowing nonstrikers and crossovers to continue working. Local 15, IBEW v. NLRB, No. 05-1058 (7th Cir. Oct. 31, 2005). The court held that the employer lacked a legitimate and substantial business justification for treating the two groups of employees differently. The court relied heavily on Member Walsh's dissent in so holding. Earlier this year, I criticized the Board's Midwest Generation decision in this post.