## Facts

- Midwest Generation, EME, LLC operated electric power plants in Illinois and bargained with Local 15, International Brotherhood of Electrical Workers, the exclusive representative for production and maintenance employees.
- In 2001, contract negotiations stalled and the union began an economic strike involving roughly 1,150 employees.
- Eight bargaining-unit employees did not participate in the strike, and 47 strikers later made individual offers to return to work; Midwest accepted all such offers and reinstated those employees.
- Midwest continued operations during the strike using supervisors, contractors, temporary replacements, and the employees who did not strike or who returned to work; it did not hire permanent striker replacements.
- On August 31, 2001, the union made an unconditional offer for all strikers to return to work.
- Midwest declined to reinstate the employees who remained out on strike as of August 31 and instead instituted a lockout that would continue until agreement on a new collective-bargaining agreement.
- The lockout applied to full-term strikers (those who stayed out until the unconditional offer), but not to nonstrikers, employees who returned during the strike, or a small number who had agreed to return just before August 31 and were being reinstated.
- After continued bargaining, the parties reached and ratified a new collective-bargaining agreement; Midwest then ended the lockout and returned all employees to work.
- The union filed unfair labor practice charges alleging the selective lockout discriminated against full-term strikers in violation of NLRA §§ 8(a)(1) and 8(a)(3).

## Issues

1. Whether an employer violates NLRA §§ 8(a)(1) and 8(a)(3) by locking out only full-term economic strikers after an unconditional offer to return, while permitting nonstrikers and strike crossovers to continue working.
2. Under the *Great Dane Trailers* framework, whether the selective lockout was inherently destructive of employees’ § 7 rights or, if not, whether it was unlawfully discriminatory absent a legitimate and substantial business justification.

## Decision

- The NLRB held that Midwest did not violate NLRA §§ 8(a)(1) or 8(a)(3) by locking out only full-term strikers.
- The Board found the selective lockout was not inherently destructive of § 7 rights.
- The Board accepted Midwest’s asserted justification—applying economic pressure in support of lawful bargaining demands while maintaining an experienced operating workforce—as legitimate and substantial.
- The Board concluded the General Counsel did not prove antiunion or strike-punishing motive sufficient to establish discrimination under § 8(a)(3).
- Because the § 8(a)(3) claim failed, the Board dismissed the derivative § 8(a)(1) allegation.

## Legal Principles

- Under *NLRB v. Great Dane Trailers, Inc.*, employer conduct that is inherently destructive of § 7 rights can support an inference of unlawful motive; conduct with only comparatively slight impact may be lawful if supported by a legitimate and substantial business justification.
- Under *American Ship Building Co. v. NLRB*, an employer may use a lockout as an economic weapon in support of a legitimate bargaining position, and a lockout is not per se unlawful.
- A selective lockout differentiating among employees based on whether they remained on strike at a particular point is not necessarily inherently destructive; the legality turns on the degree of interference with § 7 rights and the presence of legitimate business justification and unlawful motive.
- Absent proof of discriminatory or antiunion purpose (or inherently destructive conduct), an employer’s lockout used to exert bargaining pressure does not violate § 8(a)(3), and does not, on that record, independently violate § 8(a)(1).

## Conclusion

The NLRB concluded that Midwest’s decision to lock out only employees who stayed on strike until the union’s unconditional return-to-work offer was a lawful use of economic pressure tied to bargaining demands, supported by a legitimate business justification and not shown to be inherently destructive or motivated by antiunion discrimination under NLRA §§ 8(a)(1) and 8(a)(3).


Midwest Generation, EME, LLC, 343 N.L.R.B. 69 (2004)