National Labor Relations Board v. Brown/Dissent White

Mr. Justice WHITE, 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. National Labor Relations Board, 313 U.S. 177, 194, 61 S.Ct. 845, 852, and has repeatedly held that the Board may find some conduct sufficiently destructive of concerted activities and union membership as to fall within the broad language of §§ 8(a)(1) and (3) notwithstanding that the employer has a business justification for his actions. Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 65 S.Ct. 982; National Labor Relations Board v. Truck Drivers Union, 353 U.S. 87, 77 S.Ct. 643 (Buffalo Linen); National Labor Relations Board v. Erie Resistor Corp., 373 U.S. 221, 83 S.Ct. 1139; National Labor Relations Board v. Burnup & Sims, Inc., 379 U.S. 21, 85 S.Ct. 171, 13 L.Ed.2d 1. The Board holds that a lockout together with the hiring of replacements by the nonstruck employers of a multiemployer bargaining unit violates § 8(a)(1) and (3). The Court decides that this holding is an 'unauthorized assumption by an agency of major policy decisions properly made by Congress,' ante, at p. 292, and that the 'proper balance to be struck between conflicting interests' requires affirmance of the denial of enforcement of the Board's order. This decision represents a departure from the many decisions of this Court holding that the Board has primary responsibility to weigh the interest of employees in concerted activities against that of the employer in operating his business, Phelps Dodge, 313 U.S. 177, 61 S.Ct. 845; Buffalo Linen, 353 U.S. 87, 95, 77 S.Ct. 643; Erie Resistor, 373 U.S. 221; Burnup & Sims, 379 U.S. 21, 85 S.Ct. 121. The Board's discretion under these sections is not without substantial limits imposed by the policy of the Act and the requirement that the Board 'disclose the basis of its order' and 'give clear indication that it has exercised the discretion with which Congress has empowered it.' Phelps Dodge, 313 U.S. 177, 197, 61 S.Ct. 845, 854; cf. Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207. But in my view the Board has set out the basis and requisite findings for its order in this case and has not exceeded its power in finding the lockout and replacement of union employees an unfair labor practice.

The Court reasons that Buffalo Linen gave the nonstruck 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 language of the Act in finding no unfair labor practice in the nonstruck members' ceasing operations after the union had successfully shut down the operations of one of the employers. Although a departure from the Board's general ban on lockouts because of their severe effect on protected employee rights, the Board found such a lockout justified by the union-imposed pressure on the employer unit where one employer could not operate and the others maintained full operations. The Board decided that the Act did not require the employers to contribute to this pressure by maintaining full operations.

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-a -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, but surely that consideration cannot justify employer tandem action destructive of concerted activity.

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), National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, and may not maintain operations and refuse to retain or hire nonstriking union members, notwithstanding that most of the union members and most of the workers at that very plant are on strike. The struck employer need not continue operations, but if he does, he may not give a preference to employees not affiliated with the striking union, any more than he may do so after the strike, for § 7 explicitly and unequivocally protects the right of employees to engage and not to engage in a concerted activity and § 8(a)(3) clearly prohibits discrimination which discourages union membership. See Firth Carpet Co. v. National Labor Relations Board, 129 F.2d 633 (C.A.2d Cir.); National Labor Relations Board v. Shenandoah-Dives Mining Co., 145 F.2d 542 (C.A.10th Cir.); National Labor Relations Board v. Clausen, 188 F.2d 439 (C.A.3d Cir.), cert. denied, 342 U.S. 868, 72 S.Ct. 108, 96 L.Ed. 653; National Labor Relations Board v. Anchor Rome Mills, 228 F.2d 775, 780 (C.A.5th Cir.); National Labor Relations Board v. Robinson, 251 F.2d 639 (C.A.6th Cir.). If dismissing and replacing nonstriking union members at a struck plant discourages union membership and interferes with concerted activities, I fail to understand how this same conduct at a nonstruck plant, even if in the name of multiemployer parity and unity, has a different effect on employee rights. The employees are not on strike, and desire to work, for whatever reasons, and nothing in the right to lock out can alter these facts. The Court finds it unnecessary to explain how they are removed from the explicit protections of the Act, except to say they belong to the union or the unit the union represents and to assume conclusively they share its whipsawing purpose. Membership has never quite meant this before. The Court's justification for this invasion of employee rights by a member of a multiemployer unit is the employer's right to burden the union strike fund with all its members to bring economic pressure to bear on the union. Unfortunately, this reasoning has equal, if not greater, force in the single employer partial strike situation.

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. National Labor Relations Board, 347 U.S. 17, 74 S.Ct. 23, and to impinge on concerted activity generally. This proposition overturns the Board's longheld views on the effect of lockouts and dismissal of union members. Moreover, it is difficult to fathom the logic or industrial experience which on the one hand dictates that a guarantee to strike replacements that they will not be laid off after a strike is 'inherently destructive of employee interests,' although based on a legitimate and important business justification, Erie Resistor, 373 U.S. 221, 83 S.Ct. 1139, and yet at the same time dictates that the dismissal of and refusal to hire nonstriking union members, who desire to work, because other union members working for a different employer have struck, have but a slight unimportant inhibiting effect on the affiliation with the union and on concerted activities. I think the Board's finding that this activity substantially burdens concerted activities and discourages union membership is far more consistent with Erie Resistor and industrial realities. Hence the Board was well within its authority in opting for explicitly protected statutory rights of employees as against a limited employer privilege allowable only in exceptional circumstances under an unbroken line of Board decisions since the inception of the Act.

'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, 77 S.Ct. 643, 647.

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 to 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, 373 U.S. 221, 229, 83 S.Ct. 1139, 1145. I would adhere to our prior cases and affirm the decision of the Board.