# National Labor Relations Board v. John Brown

> Court of Appeals for the Tenth Circuit · June 17, 1963 · 319 F.2d 7

URL: https://www.frixlaw.com/law-library/cases/9449409

## Case

- **Full name:** NATIONAL LABOR RELATIONS BOARD, Petitioner, v. John BROWN Et Al., Respondents
- **Court:** Court of Appeals for the Tenth Circuit
- **Decided:** June 17, 1963
- **Citations:** 319 F.2d 7; 53 L.R.R.M. (BNA) 2534; 1963 U.S. App. LEXIS 4952
- **Precedential status:** Published
- **Opinion:** Dissent by Murrah
- **Judges:** Breitenstein, Lewis, Murrah
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9449409

## Opinion text

MURRAH, Chief Judge
(dissenting).
I would enforce the Board’s Order for the very reason which prompted the Supreme Court to enforce the Order in Buffalo Linen. In that case, the non-struck members of the employer unit temporarily locked out their employees, and shut down their operations. The Board, in our case, construed its decision in Buffalo as departing “from a long line of its precedents,” to hold that the lock out was not an unfair labor practice, but a “legitimate defensive means of protecting the integrity of the multi-employer bargaining unit against the disintegration threatened by the whip-saw strike.” The Supreme Court sustained the Board’s Order, as a proper exercise of its administrative function to strike a balance between the conflicting legitimate inter *12 ests of the two bargaining units. In doing so, the Court emphasized that the balancing of the conflicting interests at the bargaining table was “often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.”
In the process of balancing the conflicting interests in our case, the Board found a “critical difference” between a defensive shut down, in Buffalo, and the lock out and continued operations with replacements, as here. It reasoned that, in the context of our case, “[ljocking out employees in order to replace them with other workers may hardly be viewed as equivalent to the defensive action of a shutdown to preserve the solidarity of the Association unit;” that “[i]f the struck member operates through replacements, no economic necessity exists for the other members shutting down;” and, that a lock out and replacements, in these circumstances, may form the basis for an inference that such action was taken “not to protect the integrity of the employer unit, but for the purpose of inhibiting a lawful strike.”
The Board was, indeed, sharply divided in its analysis and application of Buffalo to the facts of our case, and the consequent inference to be drawn from the respondent’s conduct here. But, the majority view, nevertheless, prevails as the specialized judgment of the Board in its “spacious domain of policy,” i. e., see: Phelps Dodge v. N. L. R. B., 313 U.S. 177, 194 , 61 S.Ct. 845 , 85 L.Ed. 1271 , cited and relied upon in Buffalo Linen. In these circumstances, it is not within the judicial prerogative to resolve the contrariety in the Board. It is sufficient, on limited judicial review, that the majority determinations of the Board are within the ambit of policy administration. Certainly, it is not within the judicial prerogative to say that a shut down is illusory, unless the employer is allowed to continue operations with replacements, for to me, the very statement, on its face, involves the process of balancing conflicting interests at the bargaining table — a function which, as we have seen, is within the Board’s exclusive province.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9449409. Public record. Not legal advice.