National Labor Relations Board v. Brown et al., dba Brown Food Store, et al.
380 U.S. 278 (1965)
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Rule of Law:
In response to a whipsaw strike against one member of a multiemployer bargaining unit, the non-struck members may lawfully lock out their employees and continue operations by hiring temporary replacements to preserve the integrity of the bargaining unit, absent independent evidence of anti-union animus.
Facts:
- Five retail food store operators in Carlsbad, New Mexico, formed a multiemployer bargaining group to negotiate with Local 462 of the Retail Clerks International Association.
- In 1960, negotiations for a new collective bargaining agreement reached an impasse over the issue of a wage increase.
- On March 16, 1960, the union initiated a 'whipsaw strike' against only one member of the employer group, Food Jet, Inc.
- The four other members of the group (the respondents) immediately responded by locking out all of their employees who were members of the union.
- All five employers, including the struck Food Jet, continued to carry on business by using management personnel, their relatives, and temporary replacements.
- The employers explicitly told the temporary replacements that their employment would end as soon as the labor dispute was resolved.
- When an agreement was reached on April 22, the employers released the temporary replacements and immediately restored all striking and locked-out employees to their jobs.
Procedural Posture:
- The National Labor Relations Board (NLRB), the administrative agency of first instance, found that the respondent employers committed an unfair labor practice and issued an order against them.
- The employers challenged the order, and the NLRB sought enforcement, in the U.S. Court of Appeals for the Tenth Circuit, an intermediate federal appellate court.
- The Court of Appeals for the Tenth Circuit denied enforcement of the NLRB's order, siding with the employers.
- The NLRB (petitioner) sought and was granted a writ of certiorari from the U.S. Supreme Court to review the decision of the Court of Appeals.
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Issue:
Does the use of a temporary lockout and the hiring of temporary, non-union replacements by non-struck members of a multiemployer bargaining group, in response to a whipsaw strike against another member, violate §§ 8(a)(1) and (3) of the National Labor Relations Act?
Opinions:
Majority - Mr. Justice Brennan
No. The use of a temporary lockout and the hiring of temporary replacements by non-struck employers in response to a whipsaw strike does not violate §§ 8(a)(1) and (3) of the National Labor Relations Act. The employers' conduct was a legitimate defensive measure to preserve the integrity of the multiemployer bargaining unit, not an act of unlawful coercion or discrimination. Since the struck member, Food Jet, was continuing to operate, it was a reasonable and necessary business response for the non-struck members to also remain open to prevent the whipsaw strike from succeeding and breaking their united front. The impact on employee rights was 'comparatively slight' because the replacements were temporary and the regular employees' jobs were not threatened. In the absence of conduct that is 'inherently destructive' of employee rights, a violation of the Act requires independent evidence of anti-union motivation, which was not present in this case.
Dissenting - Mr. Justice White
Yes. The employers' conduct of locking out union employees and hiring non-union replacements is a violation of the National Labor Relations Act. The majority misapplies the precedent set in Buffalo Linen, which permitted a defensive lockout only when the struck employer was completely shut down. Here, the non-struck employers' action of displacing union members who wished to work with non-union members is the prototype of discrimination prohibited by § 8(a)(3). This conduct is not a minor inconvenience but is substantially destructive of concerted activities and discourages union membership. The Court improperly substitutes its own policy judgment for the specialized expertise of the National Labor Relations Board, which correctly found this conduct to be an unfair labor practice.
Concurring - Mr. Justice Goldberg
No. The employers' conduct was justified as a necessary action to preserve the integrity of the multiemployer bargaining unit under the principles of Buffalo Linen. The key factor is that the employers hired only temporary replacements. This was a proportional response designed to counteract the union's whipsaw tactic. The case would be entirely different, and the Board’s determination might well be controlling, had the non-struck employers hired permanent replacements, as it is doubtful such an action would be justified by a legitimate business interest.
Analysis:
This decision significantly expands the economic weapons available to employers in a multiemployer bargaining unit. It clarifies that the defensive lockout sanctioned in Buffalo Linen can include continuing operations with temporary replacements, thereby neutralizing the union's 'whipsaw' tactic. The ruling establishes a crucial framework for analyzing alleged unfair labor practices, distinguishing between employer conduct that is 'inherently destructive' of employee rights (where unlawful motive is presumed) and conduct where the impact is 'comparatively slight' (where independent evidence of anti-union animus is required to prove a violation). This framework shifts the balance of economic power during such disputes toward the employer group, allowing it to present a united and operational front.
