Opposition Brief — Local 702, International Brotherhood of Electrical Workers v. National Labor Relations Board

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Supreme Court of the Anited States

OcToBER TERM, 2000

LocaL UNION 702, INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WorKERS, AFL-CIO, ET AL,

Petitioners,

Vv.

NATIONAL LABOR RELATIONS BoarbD, ET AL,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

INTERVENOR'S BRIEF IN OPPOSITION

TO PETITION FOR

WRIT OF CERTIORARI

ARTHUR L. SMITH*

Stuart I. COHEN

ROBERT S. SEIGEL

HuscuH & EPPENBERGER, LLC

100 N. Broadway

Suite 1300

St. Louis, Missouri 63102

Phone: (314) 421-4800

Attorneys for Intervenor

Central Illinois Public Service Co.

*Counsel of Record

St. Louis Law Printing, Inc. 14239 Manchester Rd. Manchester, MO 63011 314-231-4477

'

oneness ee Swen 5 -

Certificate As To Parties

All parties appearing before the National Labor Rela-

tions Board and in this Court are listed in the caption.

Pursuant to FRAP Rule 26.1, Central Illinois Public

Service Company (“CIPS”) states that it is a subsidiary

of Ameren Corporation (“Ameren”), a publicly traded

company. No publicly traded company owns more than

10% of the common stock of Ameren. CIPS is engaged

in the distribution of electricity and gas. In May 2000,

CIPS transferred its electric generation assets to its

affiliate, Ameren Energy Generating Company, a wholly

owned subsidiary of Ameren.

— lli—

Table Of Contents

I Bae MI... scncncsaccsdennsanansncsasonsqusece

Statement Of The Case .................cccccsecesseeeeeeeees

I. The Unions Have Completely Distorted

The Holdings Of The NLRB And The Court

IN nis sssiccisnnenstibbianiiabesbeacevcnieqrenneasens

II. The NLRB’s Holding Is Consistent With,

If Not Compelled By, This Court’s

BD siiisasisnas ces Wiedesniciinincdabneiinsvacsevedscidea

III. The NLRB’s Holding Is Consistent With,

If Not Compellied By, Its Own Precedents.

EE EES ORY AL BEANE TTR LTS TOTO RTT

13

19

sian sable

Table Of Authorities

Cases: Page

American Ship Bldg. Co. v. NLRB, 380 U.S. 300

ih cisakchacusnasvinsouniidiosiniicnadsnunaiacmaimaaaas 5, 7

Automobile Workers v. Wisconsin

Employment Relations Board, 336 U.S. 245

CTI inci snronsincohanletaiesiiatincaiies abun biscmeaaadica ieactiamadta 9

Carpenters Local 370 (Eastern Contractors Assn,

Inc.), 332 NLRB No. 25 (2000).................... 18

Fall River Dyeing & Finishing Corp. v. NLRB,

Ge SEE. Be Ce teciststiisainoanintin 6

Highland Superstores, 314 NLRB 146 (1994)... 14-15

Inland Trucking Co. v. NLRB, 440 F.2d 562

(7th Cir. 1971), cert. denied, 404 U.S. 858

ORF AD icicined sncishactbsisantacdintiieanueiaaacoamnan 17

Int'l Brotherhood of Boilermakers v. NLRB, 858

F.2d 756 (D.C. Cir. 1988) ...........cccccccsscssssees 16

Int'l Paper v. NLRB, 115 F.3d 1045 (D.C.

CRE. BIE DP ccctccscnsncickctvaclukcccniebnlcinduehaiatenicaaiaicn 15

Lodge 76, Int'l Ass’n of Machinists and Aerospace

Workers, AFL-CIO v. Wisconsin

Employment Relations Com’n, 427 U.S. 132

CRITI «icininsnigiphensibcicnssictscckncnnaiieckcnniapieiasealbaniomea 4-5, 9-10

Metropolitan Edison Co. v. NLRB, 460 U.S. 693

(RAID in ccresccvsniskscstnicticenkecsaphanedsaneaianssdennbain 6, 15

NLRB v. Brown, 380 U.S. 278 (1965) ..... 8-9, 10, 12-13

NLRB v. Erie Resistor Corp., 373 U.S. 221

NE eiisissnceiipteeadinleihihitelenbbbpiceatiiascaciiudoi iecipcacies

NLRB v. Insurance Agents’ Int’l Union, 361 U.S.

ee ib icdiniadcciidshinsiauipimipplsvassenssiishcvicien

NLBB v. Truck Drivers Local Union No. 449, 353

Bens MP MITE E cicinispusiensebsilindiccintssncnaminiausaidteuss

NLRB v. United Food & Commercial Workers

Union, 484 U.S. 112 (1987) ........ ee

Riverside Cement Co., 296 NLRB 840 (1989)....

Seminole Tribe of Florida v. Florida, 517 U.S. 44

RRS RRR, NERC PRIS area, MN OORT Rea

Sheet Metal Workers v. EEOC, 478 U.S. 421

SU citreus istithinessitansideecssetnadacceubtsiideindcec

Thrift Drug Co., 204 NLRB 41 (1973), enforced,

491 F.2d 751 (3d Cir. 1974)...

Other Authorities:

II Davis & Pierce, Administrative Law Treatise

Ue BU I sais ike ee cease cccticnccceatalen

Industrial Union Department, AFL-CIO, The

Inside Game: Winning With Workplace

Strategies (1986) '.....0 ....cccccescesssssssssscssseeeees

Note, 85 Harv. L. Rev. 680 (1972) ...............000000.

5, 10

12

6

15-16

10

10

17

18

11

Statement Of The Case

Petitioners (“the Unions”) represent approximately

1,500 employees of intervenor Central Illinois Public

Service Co. (“CIPS”), which is a public utility supplying

electricity and natural gas in central and southern

Illinois. App. 17a; 70a. In 1992 and 1993, CIPS and the

Unions were negotiating a new collective bargaining

agreement. In March 1993, CIPS submitted its final

proposal to both Unions. Id.

The Unions rejected this proposal, but they did not

call a strike. The Unions thought that a strike was too

risky because of the possibility of permanent replace-

ments. App. 21a. Instead, they decided to implement an

“inside game” — an alternative that they thought would

be just as effective as a strike but without the risk. Jd.

The inside game consisted of refusal to work overtime

and working strictly to rule. The work to rule tactics

included slavish adherence to the exact terms of all

company rules; doing exactly and only what they were

told; reporting precisely on time; leaving company trucks

at the company facilities; and presenting all grievances

en masie. App. 18a.

The purpose of the inside game was to put economic

pressure on CIPS to accede to the Unions’ bargaining

position. App. 21a. The AFL-CIO has described the

inside game as “a strike that isn’t a strike but just looks

and feels like a strike” — a tactic that may be “more

appropriate and effective” than a strike. Industrial

Union Department, AFL-CIO, The Inside Game: Win-

ning With Workplace Strategies, at 5, 22 (1986).

As the NLRB found, the inside game — particularly

the refusal to work overtime — was “an economic weapon

pam, ie

used in support of the Unions’ bargaining position”

which “furthered the Unions’ interests in contract nego-

tiations.” App. 28a-29a. After enduring that pressure

for four weeks, CIPS locked out the Unions. On the day

of the lockout, CIPS mailed a letter to each member of

the Unions.! That letter complained about the inside

game and the pressure it was bringing on CIPS. It also

recounted the history of the bargaining effort and the

substantial concessions that CIPS had made. It com-

plained of the Unions’ refusal to submit CIPS’ modified

proposals to the membership for vote. It concluded by

stressing CIPS’ desire “to bring these issues to a suc-

cessful conclusion and have you back at your jobs at the

earliest possible date.” App. 27a.

The NLRB found that the lockout was “in response to”

the inside game. App. 21a. Based on the letter, how-

ever, it also found that “a purpose of the lockout was to

affect the outcome of negotiations.” App. 28a. Cer-

tainly, the Unions were in no doubt of CIPS’ objective.

In briefing before the NLRB, they stated that it was

“obvious” that the lockout would end if the Unions

agreed to CIPS’ proposals, and any suggestion to the

contrary was both “ridiculous” and “absurd.”

The ALJ found that the purpose of the lockout was to

“harm or punish” the Unions for engaging in protected

conduct. App. 242a. The ALJ also found that CIPS had

no valid business purpose for the lockout, based prima-

rily on the ALJ’s own views about the alternatives

available to CIPS. App. 243a-244a.

1 The Unions purport to quote the “relevant” portions of this

letter. Pet. at3n.2. In fact, they have quoted it just as “selectively”

as did the administrative law judge (“ALJ”) — a tactic that the

NLRB criticized. App. 26a.

pees, Soe

The NLRB reversed both findings. It found, as a

matter of fact, that CIPS was not motivated by anger at

the employees or a desire to punish them. App. 34a. It

held, as a matter of law, that an employer could use its

own economic weapons in response to a union’s use of an

economic weapon, such as the inside game, to pressure

the employer. App. 25a. The NLRB reasoned that there

is no meaningful distinction between a lockout in sup-

port of the employer’s bargaining position and a lockout

in opposition to a strike or an inside game. App. 28a.

Under this reasoning, “a lockout in opposition to the

inside game is perforce a lockout in opposition to the

Unions’ bargaining position, and in support of

Respondent’s bargaining position.” App. 30a.

Thus, the NLRB has adopted a policy of strict neutral-

ity when the parties to a collective bargaining relation-

ship deploy their economic weapons. Ifa union deploys

an economic weapon such as the inside game, the

employer may respond with its own economic weapons

such as a lockout.

Argument

I. The Unions Have Completely Distorted The

Holdings Of The NLRB And The Court Of

Appeals.

The sole basis on which the Unions seek certiorari is

the alleged public importance of the NLRB’s decision in

this case. According to the Unions, the NLRB has

authorized employers to engage in a “retaliatory lockout

to harm and punish employees for engaging in pro-

tected, concerted activity.” Pet. at 10n.6. They repeat-

edly characterize the lockout as a “reprisal” against

protected, concerted activity. E.g., Pet. at 6; 12; 15-17;

aaieiliiniad

23. These characterizations are the sole basis for the

Unions’ assertion that the NLRB’s holding is “a radical

break” with prior law and “a plain misreading of this

Court’s lockout decisions.” Pet. at 10-11.

The Unions can make these characterizations only by

distorting the NLRB’s actual holding and ignoring its

rationale. The NLRB did not hold that CIPS could lock

out its employees in order to punish them for engaging

in protected activity. It stated that the “question in this

case” is whether CIPS could “counter the Unions’ eco-

nomic weapon with an economic bargaining weapon of

its own.” App. 22a. The NLRB found that the Unions

had “commenced economic warfare” by using the inside

game as a “weapon” to “securle] agreement on their

terms.” App. 25a. It held that CIPS could “defend

against this weapon with a lockout in order to force the

Unions to yield.” Jd. In short, the NLRB held that an

employer could use its own economic weapons in re-

sponse to a union’s resort to economic weapons.

The holding that parties to the collective bargaining

process may deploy their economic weapons free from

intrusive oversight by the NLRB is mainstream labor

law. Indeed, the NLRB’s holding follows this Court’s

explicit invitation to adopt that precise rule. In Lodge

76, Int’l Ass’n of Machinists and Aerospace Workers,

AFL-CIO v. Wisconsin Employment Relations Com’n,

427 U.S. 132 (1976), this Court suggested:

It may be that case-by-case adjudication by the

federal Board will ultimately result in the conclu-

sion that some partial strike activities such as the

concerted ban on overtime in the instant case... are

“protected activities” within the meaning of § 7,

although not so protected as to preclude the use of

— vom

available countervailing economic weapons by the

employer.

427 U.S. at 152 n.14 (emphasis added).

The NLRB’s holding thus leaves the parties to a

collective bargaining relationship free to deploy their

economic weapons without intrusive NLRB oversight.

As the NLRB recognized:

[T]he tools of economic warfare are so directly

related to the substantive bargaining positions of

the parties, that undue regulation of the former will

inevitably enmesh the Board in an impermissible

control of the latter.

App. 29a, citing American Ship Bldg. Co. v. NLRB, 380

U.S. 300 (1965), and NLRB v. Insurance Agents’ Int'l

Union, 361 U.S. 477 (1960).

The repeated characterization of the lockout as a

“reprisal” against protected activity is pure semantics.

The NLRB opinion uses that word once, quoting the

ALJ’s findings. App. 19a. The NLRB itself held only

that the lockout was “in response to” the inside game.

App. 2la. It expressly:

reject(ed] the judge’s findings that the Respondent

was really inspired by “anger” against employees

for engaging in their protected inside game activi-

ties and that the lockout was a way to “punish”

them.

App. 34a. Thus, the NLRB expressly rejected the

Unions’ suggestion that the lockout rested on animus

toward the Unions, instead of a response to the inside

game.

wee ee :

Because the Unions were using the inside game as an

economic weapon to force CIPS to accede to their bar-

gaining position, CIPS was entitled to respond with its

own economic weapons. As the Board reasonably con-

cluded:

Respondent’s lockout was simply its economic -

weapon in response to the Unions’ economic weapon.

Thus, the lockout was both a weapon in support of

the Respondent’s bargaining position and a weapon

in opposition to the Unions’ weapon which was used

in support of the Unions’ bargaining position.

.... [I]t makes little sense to say that the lockout

was caused by the inside game strategy rather than

by the respective bargaining positions of the par-

ties. The truth is that the two are inextricably tied

in this case.

App. 28a-29a.

The NLRB has “considerable authority” to interpret

the labor laws. Fall River Dyeing & Finishing Corp. v.

NLRB, 482 U.S. 27, 42 (1987), and the courts defer to its

rulings so long as they are “rational and consistent with

the statute.” NLRB v. United Food & Commercial

Workers Union, 484 U.S. 112, 123 (1987). Under this

deferential standard, it is for the NLRB — not the courts

— to “strike the proper balance between the asserted

business justifications and the invasion of employee

rights.” Metropolitan Edison Co. v. NLRB, 460 U.S. 693,

703 (1983). Accord, NLRB v. Erie Resistor Corp., 373

U.S. 221, 236 (1963).

The NLRB’s actual holding is well within the NLRB’s

broad discretion. This Petition presents no important

question of federal law requiring this Court’s review.

Se is

Il. The NLRB’s Holding Is Consistent With, If Not

Compelled By, This Court’s Precedents.

Since its decision in American Ship, this Court has

directed the NLRB to take a strict “hands off” approach

to the use of economic weapons by either party. Before

American Ship, the NLRB did prohibit lockouts to

improve the employer’s bargaining position. Its ratio-

nale for doing so was exactly what the Unions now urge:

In the Board’s view, the use of the lockout “pun-

ishes” employees for the presentation of and adher-

ence to demands made by their bargaining repre-

sentatives and so coerces them in the exercise of

their right to bargain collectively.

380 U.S. at 308.

American Ship rejected both the NLRB’s rule and its

rationale. This Court held that there was no § 8(a)(1)

violation because the “use of a lockout solely in support

of a legitimate bargaining position” was in no way

“inconsistent with the right to bargain collectively.” 380

U.S. at 310. There was no § 8(a)(3) violation, because the

employer’s intention was “merely to bring about a settle-

ment of a labor dispute on favorable terms.” 380 U.S. at

313:

The lockout may well dissuade employees from

adhering to the position which they initially adopted

in the bargaining, but the right to bargain collec

tively does not entail any “right” to insist on one’s

position free from economic disadvantage.

380 U.S. at 309. The NLRB explicitly relied on this part

of American Ship in its decision in the instant case. App.

25a.

sian oe

In NLRB v. Brown, 380 U.S. 278 (1965) (Brown Food),

this Court extended the principle to a lockout designed

to preserve the employers’ bargaining power, rather

than to advance any particular proposal. The union

struck one of the five employers in a multi-employer

bargaining unit. The other four locked out their employ-

ees, hired temporary replacements, and informed the

employees “that they would be recalled to work when

the strike ... ended.” 380 U.S. at 281.

The NLRB held that this was unlawful, because the

lockout and temporary replacements inhibited a lawful

strike. This Court disagreed:

In the absence of proof of unlawful motivation,

there are many economic weapons which an em-

ployer may use that either interfere in some mea-

sure with concerted employee activities, or which

are in some degree discriminatory and discourage

union membership, and yet the use of such eco-

nomic weapons does not constitute conduct that is

within the prohibition of either § 8(a)(1) or § 8(a)(3).

380 U.S. at 283.

Brown Food clearly supports, and probably requires,

the NLRB’s decision in the instant case. The employers

in Brown Food did not condition the end of the lockout

on the achievement of a collective bargaining agree-

ment. They conditioned it on an end to the strike — an

activity “no less protected than the inside game” in the

instant case. App. 25a. Ifan employer can condition the

end ofa lockout on ending a strike, a lockout designed to

“force the Unions to cease their inside game” must be

lawful. App. 25a.

ae

Brown Food allowed all members of a multi-employer

group to lock out the union in response to a whipsaw

strike against one of the employers. 380 U.S. at 281.

The same principle would permit a single employer with

multiple facilities to lock out all of its employees in

response to a strike directed to a single facility. In the

instant case, the Unions effectively struck every time

they implemented one of the inside game tactics — e.g.,

refusing overtime. A lockout of all employees in re-

sponse to such a strike is identical in principle to locking

out all employees in response to a strike at a single

facility. Brown Food is compelling precedent for the

NLRB’s decision in the instant case.

In Machinists, the union engaged in a concerted

refusal to work overtime, in order to put economic

pressure on the employer. A state labor relations board

found that this practice violated state law and enjoined

it. The issue before this Court was whether federal labor

law preempted the state law. This Court held that state

law was preempted, because Congress intended that

the parties’ economic weapons “were not to be regulable

by States any more than by the NLRB.” 427 U.S. at 149.

Machinists explicitly overruled Automobile Workers

v. Wisconsin Employment Relations Board, 336 U.S.

245 (1949) (Briggs-Stratton). 427 U.S. at 154. The

reason was that Briggs-Stratton had assumed that the

employer could not resort to its own economic weapons

in response to inside game tactics such as a concerted

refusal to work overtime — an assumption that was

wrong:

[E]ven were the activity presented in the instant

case “protected” activity within the meaning of § 7,

economic weapons were available to counter the

Union’s refusal to work overtime, e.g., a lockout ....

aie anes.

427 U.S. at 152-53. As noted, Machinists invited the

NLRB to adopt the very holding that it reached in the

instant case: the inside game may be protected activity,

but “not so protected as to preclude the use of available -

countervailing economic weapons by the employer.”

427 US. at 152 n.14.

The foregoing quotations may be dicta, in that they

are not absolutely essential to the preemption holding.

As the central reason for overruling a prior precedent of

this Court, however, these remarks are “an important

part of the Court’s rationale for the result it reache[d],”

and thus “entitled to greater weight.” Seminole Tribe

of Florida v. Florida, 517 U.S. 44, 67 (1996), quoting

Sheet Metal Workers v. EEOC, 478 U.S. 421, 490 (1986)

(O’Connor, J., concurring). As the NLRB stated, App.

31a n.19, it does find Supreme Court dicta “instructive”

in interpreting federal labor law —a reasoned conclusion

that is itself entitled to deference.

Allewing the employer to meet force with force is the

only way to comply with this Court’s holding that the

NLRB is not the “arbiter of the sort of economic weapons

the parties can use” in collective bargaining negotia-

tions. Insurance Agents, supra, 361 U.S. at 497. Obvi-

ously, the lockout puts additional pressure on the union

to end the inside game or accept the employer’s propos-

als. Just as in Brown Food, “these effects are no

different from those that result from the legitimate use

of any economic weapon by an employer.” 380 U.S. at

286.

By contrast, the Unions want to have their cake and

eat it too. Their position is that they can deploy the

inside game as an economic weapon but the employer

cannot respond with its own economic weapons. As the

aie OE

NLRB found, App. 21a, the Unions chose the inside

game precisely because they thought it was “as effective

as the strike but without the risk.” In the long run,

allowing a union to tilt the playing field like that will

produce more disputes rather than fewer:

[Bloth employers and employees should have the

unrestrained opportunity to exert or threaten eco-

nomic pressure upon each other. To the extent this

opportunity is limited, the parties have less to lose

by intransigence and are less likely to make conces-

sions for settlement.

Note, 85 Harv. L. Rev. 680, 685-86 (1972).

The Unions claim that American Ship is limited to

temporary layoffs “solely as a means to bring economic

pressure” in support of the employer’s bargaining posi-

tion. Pet. at 21 (emphasis by the Unions). They claim

that the instant case involves “a desire to retaliate for

protected, concerted activity” for the purpose of “forcing

the employees to end that activity.” Id.

This theory entirely ignores the NLRB’s holding that

there is no meaningful distinction between a lockout in

support of the employer’s bargaining position and a

lockout in response to the inside game:

[T]he inside game continued to be a weapon to

achieve the Unions’ bargaining position. That

bargaining position was contrary to the

Respondent’s bargaining position. It would seem to

follow that a lockout in opposition to the inside

game is perforce a lockout in opposition to the

Unions’ bargaining position, and in support of

Respondent’s bargaining position.

App. 29a-30a. :

soon WE cows

The Unions claim that American Ship allows lockouts

only to support the employer’s bargaining position — not

those that are hostile to the bargaining process. Pet. at

21-22. Because the lockout was an economic weapon

deployed in response to the Unions’ own economic

weapon, it was inherently supportive of the bargaining

process. In briefing before the NLRB, Local 702 ac-

knowledged that CIPS would have instantly termi-

nated the lockout if the Union gave in to CIPS’ bargain-

ing position, and it derided any suggestion to the con-

trary as “absurd” and “ridiculous.”

The Unions’ discussion of Brown Food is pure seman-

tics. They seize on the word “reprisal,” which the NLRB

quoted from the ALJ’s decision, and argue that Brown

Food involved no evidence of reprisal. Pet. at 22-23. The

word “reprisal” can have two meanings. It can mean

hostility to the Unions and a desire to punish them,

which would convert an otherwise legal lockout into an

unfair labor practice; the NLRB rejected that theory on

the facts. App. 34a. Alternatively, the word can mean

“in response to,” and that is clearly what the NLRB

meant to find: that CIPS had used the lockout “in

response to” the inside game. App. 21a.

The Unions assert that Brown Food “did not sanction

lockouts ‘responsive’ to whipsaw strikes.” Pet. at 23

(emphasis original). The Unions are simply wrong. In

NLRB v. Truck Drivers Local Union No. 449, 353 U.S. 87

(1957) (Buffalo Linen), the employers told the union

that the lockout was “because of the Frontier strike,”

and would end if the union “ended the strike.” 353 U.S.

at 90. This Court nonetheless held that the lockout was

lawful. In Brown Food, this Court described its holding

in Buffalo Linen:

isin ins

[I]n the absence of specific proof of unlawful motiva-

tion, the use of a lockout by members of a

multiemployer bargaining unit in response to a

whipsaw strike did not violate either § 8(a)(1) or §

8(a)(3). :

380 U.S. at 281-82 (emphasis added).

At bottom, this petition rests on the theory that a -

lockout in response to the inside game in and of itself

establishes unlawful motivation. Buffalo Linen implic-

itly and Brown Food explicitly reject that theory. That

is why Machinists plainly states that a lockout is a

lawful, legitimate response to a union’s use of economic

weapons such as the inside game. The NLRB’s opinion

is consistent with, if not compelled by this Court’s

precedents.

IiI. The NLRB’s Holding Is Consistent With,

If Not Compelled By, Its Own Precedents.

The Unions claim that a “long and unbroken line” of

NLRB precedents holds that retaliation against pro-

tected activities is an unfair labor practice. Pet. at 14.

They assert that the purpose of this lockout was to

retaliate against the Unions for using the inside game

and claim that “lockouts in reprisal for employees’

concerted, protected activities” are unfair labor prac-

tices. Pet. at 15.

There are two fundamental flaws in these grandiose

assertions. First, the Unions assume that a lockout in

response to the use of an economic weapon by a union,

standing alone, is unlawful retaliation. As noted, this

Court’s precedents hold exactly the opposite. Second,

the Unions assume that there is some meaningful dis-

tinction between a lockout in support of an employer’s

ela A es

bargaining position and a lockout in opposition to a

union’s deployment of economic weapons. They never

address the NLRB’s holding that these are merely two

sides of the same coin.

Thus, it is unsurprising that none of the Unions’

lockout cases support their theory.? In Highland

Superstores, 314 NLRB 146 (1994), the employer an-

nounced its intention to subcontract some unit work.

The union issued handbills urging a consumer boycott of

Highland. Highland then threatened to terminate any

employee who distributed a handbill.

The NLRB regarded the handbilling as an “economic

action by the union.” 314 NLRB at 146. It held that “an

employer can ordinarily take economic action” in re-

sponse to the union’s economic action in support of a

lawful bargaining position. Jd. Based on “the specific

facts of this case,” the NLRB found that the employer

had acted “to punish the employees for their handbilling,

rather than in support of its bargaining position.” Id.

Those “specific facts” were that the employer's conduct:

was a threat to terminate, not simply a threat to

lockout. In addition, the Respondent did not ex-

plain, until the hearing, that its lockout was in

support of its bargaining position.

Id.

In the instant case, CIPS never threatened to termi-

nate anyone and the Unions knew at all times that the

lockout would end if they capitulated. App. 32a. The

NLRB specifically “rejected[ed]” the ALJ’s findings that

2 Most of the Unions’ “long and unbroken line” of cases, Pet. at 14-

15, have nothing to do with lockouts.

ain i

the purpose of the lockout was “to ‘punish” the employ-

ees. App. 34a. Given the NLRB’s factual findings in the

instant case about CIPS’ motives, Highland Stores

requires application of the ordinary rule that “an em-

ployer can . . . take economic action” in response to the

Unions’ economic action. 314 NLRB at 146.

In Riverside Cement Co., 296 NLRB 840 (1989), the

employer implemented its final offer, which included

several articles taken directly from the expired agree-

ment. The custom and usage of the parties under one

such article gave the employees discretion on whether to

bring their own hand tools. The employer demanded

that the employees provide their own hand tools and

denied work to those who did not. For two reasons, the

NLRB rejected the employer’s argument that this was a

lawful lockout.

First, the “denial of work was limited to only those

employees” who refused to supply their own hand tools.

296 NLRB at 842. As the Court of Appeals observed in

the instant case, the lockout was unit-wide. App. 12a.

That distinction is critical. Section 8(a)(3) prohibits

“discrimination against employees who participate in

concerted activities protected by § 7.” Metropolitan

Edison, supra, 460 U.S. at 703. Locking out only those

employees who engage in protected activities would

penalize only those who actively support the union. In

every case in which this Court has found conduct to be

inherently destructive of unit members’ rights, “the

_ employer treated employees within a bargaining unit

differently depending upon the degree of their union

activity.” Intl Paper v. NLRB, 115 F.3d 1045, 1050

(D.C. Cir. 1997) (emphasis original).

en

Moreover, allowing an employer to suspend only the

union activists would not inflict enough pain on the

employer who attempts it. The economic weapons that

the parties can use serve the goal of collective bargain-

ing, because they hurt the party that invokes them as

well as the other party. For example, a strike may

pressure the employer, but the unit members have to do

without a paycheck for its duration. An employer who

locks out its workers is “unlikely [to] ... fare well” using

inexperienced replacements, because the business “will

operate less efficiently.” Jnt7 Brotherhood of Boiler-

makers v. NLRB, 858 F.2d 756, 767 (D.C. Cir. 1988). If

the employer could lock out only the union activists,

while retaining the other experienced employees, this

disadvantage would vanish. Thus, it is reasonable to

distinguish between suspensions of only the activists

and lockouts of everyone.°

The NLRB’s second rationale in Riverside was that

the employer had not acted “to support a legitimate

bargaining position.” 296 NLRB at 842. Rather, its

action was “contrary to .. . the relevant condition of

employment.” Jd.n.10. Thus, as the NLRB found, App.

33a n.20, the employer had unilaterally changed the

terms of its own implemented final offer. By definition,

a lockout in support of an unlawful bargaining position

is itself unlawful, and the NLRB properly distinguished

Riverside on that basis. App. 33a n.20.

’ The Unions’ suggestion that this distinction “explains nothing

and justifies nothing,” Pet. at 19, ignores the unique context of

lockouts in support of an employer’s bargaining position. None of

the Unions’ cases arise in that context, so none are in point.

iE eis

The Unions’ final lockout authority is Thrift Drug Co.,

204 NLRB 41 (1973), enforced, 491 F.2d 751 (3d Cir.

1974). They quote a portion of the ALJ’s opinion to the

effect that suspension of a single union activist was

illegal because its primary purpose was to protect the

employer against the union’s economic weapons, rather

than to support the employer’s bargaining position. Pet.

at 16. The NLRB did not adopt that portion of the ALJ’s

opinion.

The ALJ apparently found the employer’s conduct

iHegal for three independent reasons:

A. The purpose of the lockout was to protect the

employer “against the Union’s economic weap-

ons,” rather than to place “an economic burden

on the union members in support of the

Employer’s contract position.”

B. The “selection of Mrs. Peterson because of her

activities on the picket line was discrimina-

tory.”

C. Continuing operations with the other employ-

ees violated Inland Trucking Co. v. NLRB, 440

F.2d 562 (7" Cir. 1971), cert. denied, 404 U.S.

858 (1971).

204 NLRB at 43.

In affirming, the majority of the NLRB adopted only

the second of these rationales. “Members Kennedy and

Penello rely solely on [the] finding that Peterson was

unlawfully selected for suspension because of her activi-

ties on behalf of the Union.” 204 NLRB at 41 n. 2

(emphasis added). Member Jenkins also relied on the

Inland Trucking theory. Id. No one endorsed the first

— eR

theory, and no subsequent authority has ever relied on

it. The NLRB does not treat unexcepted findings of an

ALJ as precedent. Carpenters Local 370 (Eastern Con-

tractors Assn, Inc.), 332 NLRB No. 25, at 2 n.2 (2000).

An ALJ opinion that the NLRB does not adopt cannot be

valid precedent either. II Davis & Pierce, Administra-

tive Law Treatise, § 9.9 at 97 (3d Ed. 1994) (“The agency

adopts an ALJ’s decision only if, and to the extent that,

it agrees with the decision”).

Consistent with this Court’s precedents, the NLRB

has adopted a general rule that an employer may deploy

its own economic weapons in response to a union’s resort

to economic weapons. That does not discriminate against

the union. Instead, it creates a level playing field in

which both sides are free to use their economic weapons

without intrusive oversight by the NLRB.

ee

Conclusion

For these reasons, the petition for certiorari should be

denied.

Respectfully Submitted,

HUSCH & EPPENBERGER,

LLC

By:

Arthur L. Smith

Counsel of Record

Stuart I. Cohen

Robert S. Seigel

100 North Broadway, Suite 1300

St. Louis, MO 63102

Office: (314) 421-4800

Fax No: (314) 421-0239

Attorneys for Intervenor

Central Illinois Public Service Co.