## Facts

- Midwest Generation and Local 15 negotiated a successor collective bargaining agreement in 2001.
- After bargaining stalled, Local 15 began an economic strike on June 28, 2001, involving about 1,150 employees.
- During the strike, some employees continued working (“non-participants”), and others made individual offers to return to work (“crossovers”); Midwest accepted those offers and returned these employees to work.
- Midwest maintained operations during the strike using supervisors, contractors, and some temporary replacements, and did not hire permanent replacements.
- No record evidence showed that the non-participants and crossovers were necessary to maintain Midwest’s operations during the strike.
- On August 31, 2001, Local 15 made an unconditional offer for all strikers to return to work.
- Midwest did not immediately reinstate the remaining full-term strikers and claimed it needed a phased return for safe and efficient operations.
- The union alleged Midwest unlawfully favored non-participants and crossovers and discriminated against full-term strikers based on strike participation.

## Issues

1. Whether substantial evidence supported the NLRB’s finding that Midwest had a legitimate and substantial business justification for reinstating non-participants and crossovers ahead of full-term strikers after an unconditional offer to return.
2. Whether Midwest’s delayed reinstatement of full-term economic strikers violated NLRA §§ 8(a)(1) and 8(a)(3).

## Decision

- The Seventh Circuit reversed the NLRB’s no-violation decision and denied enforcement of the Board’s order.
- The court held that substantial evidence did not support the Board’s finding of a legitimate and substantial business justification for Midwest’s differential treatment.
- The court remanded to the NLRB to determine whether Midwest’s unfair labor practices rendered the current collective bargaining agreement void.

## Legal Principles

- After an unconditional offer to return, an employer may not discriminate in reinstatement among economic strikers based on strike participation unless it proves a legitimate and substantial business justification.
- The employer bears the burden to support asserted operational or safety justifications with record evidence; conclusory assertions are insufficient under substantial-evidence review.
- Differential treatment that tends to discourage protected strike activity can violate NLRA §§ 8(a)(1) and 8(a)(3).

## Conclusion

The court rejected the Board’s acceptance of Midwest’s phased-return rationale because the record lacked evidence that operational needs required favoring non-participants and crossovers over full-term strikers, and it remanded for further proceedings on the consequences for the parties’ collective bargaining agreement.


Loc. 15, Int’l Bhd. of Elec. Workers v. NLRB, 429 F.3d 651 (7th Cir. 2005)