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Employer conduct may so tend to discourage union activity that an unlawful purpose will be inferred. This conduct is divided into two categories--"inherently destructive" and "comparatively slight"--depending on the potential effect of the employer's conduct on union activity: If it can reasonably be concluded that the employer's discriminatory conduct was "inherently destructive" of important employee rights, no proof of an antiunion motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations. If the adverse effect of the discriminatory conduct is "comparatively slight," an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct.
Petitioner International Paper Company (IP) challenges a finding by the National Labor Relations Board (Board) that IP's permanent subcontracting of employee jobs during a lawful lockout violated section 8(a)(1), 8(a)(3) and 8(a)(5) of the National Labor Relations Act (Act), 29 U.S.C. § 158(a)(1), 158(a)(3), 158(a)(5). The Board concluded that IP's conduct fell into that class of cases that is so "inherently destructive" of employee rights that antiunion motive can be inferred and need not be proved. IP argues that it implemented the permanent subcontract during the lockout solely for economic reasons and that its action does not support an inference of antiunion motive.
Did the Board err in concluding that IP's conduct fell into that class of cases that is so "inherently destructive" of employee rights that antiunion motive can be inferred and need not be proved?
The court granted IP’s petition and denied the Board's cross-petition for enforcement. The court held that IP’s implementation of the permanent subcontract while the lockout was in progress, but only after having fulfilled its bargaining obligations on the issue, produced too minimal an effect to place IP’s conduct in the inherently destructive category. Additionally, not only did IP’s conduct have a comparatively slight impact on employee rights, but IP met its burden in showing that its implementation of the permanent subcontract was based on legitimate and substantial economic business reasons. Thus, the court reversed the findings of the Board and denied the Board's petition for enforcement.