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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 1051

## Text

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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

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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

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1523%3A3. Public record. Not legal advice.