NATIONAL LABO RELATIO S B v. v. BROWN

Opinion

 [*279]  [***842]  [**982]    MR. JUSTICE BRENNAN delivered the opinion of the Court.

The respondents, who are members of a multiemployer bargaining group, locked out their employees in response  [*280]  to a whipsaw strike against another member of the group.  They and the struck employer continued operations with temporary replacements. The National Labor Relations Board found that the struck employer's use of temporary replacements was lawful under Labor Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, but that the respondents had violated §§ 8 (a)(1) and (3) of the National Labor Relations Act ¹ by locking out their regular employees and using temporary replacements to carry on business. 137 N. L. R. B. 73. The Court of Appeals for the Tenth Circuit disagreed and refused to enforce the Board's order. 319 F.2d 7. We granted certiorari,  [****5]   375 U.S. 962. We affirm the Court of Appeals.

 [****6]  Five  [***843]  operators of six retail food stores in Carlsbad, New Mexico, make up the employer group. The stores had bargained successfully on a group basis for many years with Local 462 of the Retail Clerks International Association. Negotiations for a new collective-bargaining agreement to replace the expiring one began in January 1960. Agreement was reached by mid-February on all  [*281]  terms except the amount and effective date of a wage increase. Bargaining continued without result, and on March 2 the Local informed the employers that a strike had been authorized. The employers responded that a strike against any member of the employer group would be regarded as a strike against all. On March 16, the union struck Food Jet, Inc., one of the group. The four respondents, operating five stores, immediately locked out all employees represented by the Local, telling them and the Local that they would be recalled to work when the strike against  [**983]  Food Jet ended. The stores, including Food Jet, continued to carry on business by using management personnel, relatives of such personnel, and a few temporary employees; all of the temporary replacements were expressly [****7]  told that the arrangement would be discontinued when the whipsaw strike ended. ² Bargaining continued until April 22 when an agreement was reached. The employers immediately released the temporary replacements and restored the strikers and the locked-out employees to their jobs.

The Board and the Court of Appeals agreed that the case was to be decided in light of our decision in the so-called Buffalo Linen case, Labor Board v. Truck Drivers Union, 353 U.S. 87. [****8]  There we sustained the Board's finding that, ] in the absence of specific proof of unlawful motivation, the use of a lockout by members of a multiemployer bargaining unit in response to a whipsaw strike did  [*282]  not violate either § 8 (a)(1) or § 8 (a)(3). We held that, although the lockout tended to impair the effectiveness of the whipsaw strike, the right to strike "is not so absolute as to deny self-help by employers when legitimate interests of employees and employers collide. . . .  The ultimate problem is the balancing of the conflicting legitimate interests." 353 U.S., at 96. We concluded that the Board correctly balanced those interests in upholding the lockout, since it found that the nonstruck employers resorted to the lockout to preserve the multiemployer bargaining unit from the disintegration threatened by the whipsaw strike. But in the present case the Board held, two members dissenting, that the respondents' continued operations with temporary replacements constituted a "critical difference" from Buffalo Linen -- where all members of the employer group [****9]  shut down operations -- and that in this circumstance it was reasonable to infer that the respondents did not act to protect the multiemployer group, but "for the purpose of inhibiting a lawful strike." 137 N. L. R. B., at 76.  [***844]  Thus the respondents' act was both a coercive practice condemned by § 8 (a)(1) and discriminatory conduct in violation of § 8 (a)(3).

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