Midwest Generation, EME, LLC

National Labor Relations Board - Board Decisions

Sep 30, 2004

343 N.L.R.B. 69 (N.L.R.B. 2004)

MIDWEST GENERATION, EME, LLC
343 NLRB No. 12
69
Midwest Generation, EME, LLC and International
Brotherhood of Electrical Workers, Local 15,
AFL–CIO. Case 13–CA–39643–1
September 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
Upon a charge filed on September 6, 2001, by Interna-
tional Brotherhood of Electrical Workers, Local 15,
AFL–CIO (the Union), the General Counsel of the Na-
tional Labor Relations Board issued a complaint on
March 7, 2002, against Midwest Generation, EME, LLC
(the Respondent), alleging that it had engaged in certain
unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and (1) and Section 2(6) and
(7) of the National Labor Relations Act. Copies of the
charge and complaint were served on the Respondent.
The Respondent filed a timely answer denying the com-
mission of any unfair labor practices.
On May 21, 2002, the Union, the Respondent, and the
General Counsel filed with the Board a joint motion to
transfer this proceeding to the Board and stipulation of
facts.1 They agreed that the charge, the complaint, the
Order rescheduling hearing, the Order postponing hear-
ing indefinitely, the stipulation, and the accompanying
joint exhibits constitute the entire record in this case, and
that no oral testimony is necessary or desired by any of
the parties. The parties waived a hearing, the making of
findings of fact and conclusions of law, and the issuance
of a decision by an administrative law judge. On No-
vember 20, 2002, the Acting Executive Secretary, by
direction of the Board, issued an order approving the
Stipulation, and transferring the proceeding to the Board.
The Union, the Respondent, and the General Counsel
thereafter each filed a brief. In addition, the Respondent
and the General Counsel filed answering briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
On the entire record in the case, the Board makes the
following findings of fact and conclusions of law and
issues the following Order.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office located
in Chicago, Illinois, and facilities located in the central
and northern part of the State of Illinois, is engaged in
the production and wholesale sale of electricity. The
Respondent annually purchases and receives goods at its

1 The parties thereafter filed a supplement to the stipulation of facts.
facilities which are valued in excess of $50,000 from
points outside of Illinois. The parties have stipulated,
and we find, that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The parties have stipulated that “the only issue for
resolution before the Board” is:
Whether the [Respondent] violated Sections 8(a)(1) and
(3) of the Act by locking out and/or refusing to reinstate
those employees who were on [an economic] strike at
the time of the union's unconditional offer to return to
work, while not locking out and/or reinstating those in-
dividuals employed by the [Respondent] who, prior to
the union's unconditional offer to return to work, had
ceased participating in the strike by making an offer to
return to work, and had either returned to work or sched-
uled a return to work at the [Respondent]?
For the reasons set forth below, we find that the Re-
spondent did not violate the Act by its lockout. We shall
accordingly dismiss the complaint.
A. Factual Background
In June 2001,2 the Union and the Respondent met to ne-
gotiate a successor collective-bargaining agreement fol-
lowing the expiration of their previous agreement. As of
June 28, the parties had not reached agreement on a new
collective-bargaining agreement. The parties have stipu-
lated that throughout the course of negotiations, the Re-
spondent and the Union met and bargained in good faith.
On June 28, the Union commenced an economic strike
in support of its bargaining position. The entire bargain-
ing unit—approximately 1150 employees—participated
in the strike as of its commencement, with the exception
of approximately 8 bargaining unit members who con-
tinued working (nonstrikers).
During the course of the economic strike, the Respon-
dent maintained operations using supervisory personnel,
contractors, and some temporary replacement employees.
The Respondent did not use permanent replacements
during the strike, or during its subsequent lockout.
Some bargaining unit employees returned to work for
the Respondent during the strike. From June 28 to Au-
gust 31, approximately 47 striking employees individu-
ally offered to return to work, and Respondent accepted
them back (these employees are hereafter referred to as
crossover employees). The parties have stipulated that
the Respondent accepted these crossover employees back

2 All dates are in 2001 unless otherwise noted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD70
to work without regard to their membership status in the
Union.
As of August 31, the Respondent and the Union had
not reached agreement on the terms of a new collective-
bargaining agreement, and were still engaged in bargain-
ing for a new contract. By letter dated August 31, the
Union notified the Respondent that it was terminating the
strike, and made an unconditional offer to return to work
on behalf of all strikers.
The parties held a bargaining session on September 4.
The Respondent advised the Union that it was evaluating
the Union’s offer to return to work, and had not yet
reached any decision. By letter dated September 6, the
Respondent declined the Union’s offer to return to work,
and instituted a lockout of all those individuals on strike
as of the date of the offer (August 31). The Respon-
dent’s September 6 letter notified the Union that it “will
not allow striking employees to return to work until a
new contract is agreed to and ratified by your member-
ship.” The letter stated that “[t]hose employees who had
already returned to work,3 or were scheduled to return to
work, prior to Friday, August 31, 20014 will be allowed
to continue to work.”
Many bargaining unit employees sought to return to
work after the lockout commenced. The Respondent
informed them they could not return until a new contract
was agreed to and ratified by the union membership.
Following the implementation of the lockout, the Re-
spondent and the Union continued to meet and bargain
for a new collective-bargaining agreement. On October
16, the bargaining unit ratified the Respondent’s Sep-
tember 21 contract proposal. On October 22, the Re-
spondent ended the lockout, and all locked out employ-
ees who opted to do so returned to work. The parties
executed a collective-bargaining agreement effective
from October 22 to December 31, 2005.
B. The Parties’ Contentions
The General Counsel contends that the Respondent’s
partial lockout of only full-term strikers, but excluding
nonstrikers and crossover employees, is unlawful under
both the “comparatively slight” and “inherently destruc-
tive” tests set forth in NLRB v. Great Dane Trailers, 388
U.S. 26, 34 (1967). The General Counsel reasons with
respect to the former that the Respondent’s asserted
business justification for the lockout—to pressure the
Union to accept the Respondent’s bargaining propos-

3 This referred to the 8 nonstrikers, and the 47 crossover employees
who ceased participating in the strike from June 28 to Aug. 31.
4 This referred to six employees who the Respondent permitted to re-
turn to work between Sept. 1–5. They had ceased participating in the
strike, and had scheduled with the Respondent their return to work,
prior to the Union’s Aug. 31 offer to return.
als—fails to explain why the Respondent implemented a
partial lockout targeting only full-term strikers. The
General Counsel accordingly argues that the Respondent
has failed to provide any substantial business justifica-
tion for its partial lockout. The General Counsel further
argues that there is “ample evidence” that Respondent
acted with antiunion animus, because it targeted employ-
ees for lockout based on their Section 7 activity: it locked
out only those employees who participated in the strike
until its end, but did not lock out those who did not strike
or who abandoned the strike before its end. The General
Counsel additionally contends that the timing of the
lockout shows antiunion animus: the Respondent pur-
posefully delayed implementing the lockout until Sep-
tember 6 to allow the six crossover employees who had
offered to return to work before August 31 to be rein-
stated before the start of the lockout. It is thus asserted
that Respondent timed its lockout to ensure that only
“ardent” union supporters were affected.
The General Counsel alternatively argues that because
the partial lockout expressly targeted only full-term
strikers it was inherently destructive of employees’ Sec-
tion 7 rights. The General Counsel contends that the
Respondent’s partial lockout carried the clear message
that supporting the Union will result in severe penalties:
that those who participate in the strike and adhere to the
Union’s bargaining demands will be locked out, while
those who do not will be rewarded with continued work.
The Union argues, for substantially the same reasons
as the General Counsel, that the Respondent’s partial
lockout is unlawful under both tests set forth in Great
Dane. The Union further contends, however, that the
unlawful lockout coerced it to accept the Respondent’s
contract proposal, and the contract should therefore be
set aside.
The Respondent counters that its lockout was in fur-
therance of securing its lawful bargaining proposals,
which constitutes a settled business justification under
American Ship Building Co. v. NLRB, 380 U.S. 300, 312
(1965). The Respondent explains that the lockout ap-
plied only to employees who were actively participating
in the strike in support of the Union’s bargaining de-
mands, in order to pressure them to abandon those de-
mands. The Respondent asserts that the crossover em-
ployees and the nonstrikers had already “removed them-
selves from the Union’s economic action,” and pressur-
ing them via lockout was thus unnecessary. The Re-
spondent further argues that the partial nature of the
lockout resulted not from its conduct, but from the pro-
tected choice of the nonstrikers and the crossovers not to
participate in the strike. The Respondent additionally
argues that there is no evidence that it acted with anti-
MIDWEST GENERATION, EME, LLC 71
union animus, but rather the parties have stipulated that it
at all times bargained in good faith for a successor con-
tract. The Respondent asserts that in these circumstances
its lockout may not be found unlawful under either test
set forth in Great Dane.
III. DISCUSSION
To determine whether the Respondent’s lockout was
motivated by antiunion animus in violation of Section
8(a)(3) of the Act, the Board applies the framework de-
veloped by the Supreme Court in NLRB v. Great Dane
Trailers, supra at 34:
First, if it can reasonably be concluded that the em-
ployer’s discriminatory conduct was “inherently de-
structive” 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. Second, if the adverse effect of the dis-
criminatory conduct on employee rights is “compara-
tively 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. [Emphasis in original.]
See Central Illinois Public Service Co., 326 NLRB 928, 930
(1998), rev. denied sub nom. Electrical Workers Local 702,
v. NLRB, 215 F.3d 11 (D.C. Cir. 2000), cert. denied 531
U.S. 1051 (2000). The Supreme Court has held that a lock-
out for the “sole purpose of bringing economic pressure to
bear in support of [the employer’s] legitimate bargaining
position” is not unlawful and is not inherently destructive of
employee rights. American Ship Building Co. v. NLRB,
supra, 380 U.S. at 318.
The evidence here clearly establishes that the Respon-
dent’s lockout was for the purpose of applying economic
pressure in support of its legitimate bargaining propos-
als.5 The Respondent expressly stated in its September 6
letter to the Union announcing the lockout that it would
end as soon as “a new contract is agreed to and ratified
by your membership.” The Board has made clear that an
employer’s “assertion that it would not offer the strikers
reinstatement until a new agreement was reached” is
“sufficient to inform the striking employees that the em-
ployer was locking them out in support of its bargaining
position.” Ancor Concepts, Inc., 323 NLRB 742, 744
(1997), enf. denied on other grounds 166 F.3d 55 (2d Cir.
1999). It is thus clear that the lockout here, brought in
support of the Respondent’s legitimate bargaining posi-
tion, cannot be considered inherently destructive of em-

5 No party argues that the Respondent’s bargaining proposals were
unlawful or a nonmandatory subject.
ployee rights under Great Dane. See Central Illinois
Public Service Co., supra at 930–931.
Accordingly, we shall treat the Respondent’s lockout
as having a “comparatively slight” impact on employee
rights and apply the second Great Dane test to determine
the lockout’s legality. “[I]f the action is deemed to have
only a comparatively slight impact on employee rights,
an affirmative showing of antiunion motivation must be
made to sustain a violation under the second test of Great
Dane, if the employer has first come forward with evi-
dence of a legitimate and substantial business justifica-
tion for its conduct.” Id. at 930.
The Respondent has Presented a Legitimate and
Substantial Business Justification
The Board has explained that “[u]rging consideration
and acceptance of one’s bargaining proposals is clearly a
legitimate bargaining position” and that “application of
economic pressure in support of this bargaining position
constitutes a legitimate and substantial business justifica-
tion for the lockout within the meaning of Great Dane.”
Central Illinois Public Service Co., supra, 326 NLRB at
932. As discussed above, the record shows that the Re-
spondent’s lockout was brought for the purpose of bring-
ing economic pressure to bear in support of its legitimate
bargaining position. The Respondent has consistently
expressed this settled business justification throughout
these proceedings, and there is no basis for concluding
that this was not the real reason for its lockout.6
The Respondent has further justified the partial nature
of its lockout. The Respondent explains that the lockout
applied only to employees who were actively participat-
ing in the strike on August 31 in support of the Union’s
bargaining demands, in order to pressure them to aban-
don those demands. Neither the General Counsel, the
Union, nor the dissent contend that this is an improper
justification for locking out employees.
Moreover, it is settled that the Board recognizes the
legality of partial lockouts when justified by operational
needs and without regard to union membership status.
See Bali Blinds Midwest, 292 NLRB 243, 246–247
(1988); Laclede Gas Co., 187 NLRB 243, 243–244
(1970). We find that these considerations further but-
tress the lawfulness of Respondent’s partial lockout.
First, there is no dispute that the partial nature of the
lockout was unrelated to union affiliation; the parties
have stipulated that the Respondent accepted bargaining
unit employees back to work without regard to member-

6 Compare, e.g., Black Entertainment Television, 324 NLRB 1161
(1997) (when an employer vacillates in offering a consistent account of
its actions, an inference may be drawn that the real reason for its con-
duct is not among those asserted).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD72
ship status in the Union. Second, there can be no dispute
that the Respondent sought to effectively continue opera-
tions during the lockout, as it had while successfully
weathering the strike. Of course, “there can be no more
fundamental employer interest than the continuation of
business operations.” Harter Equipment, supra, 280
NLRB at 599. The Respondent lawfully used supervi-
sory personnel, contractors, and temporary employees to
maintain operations during the strike—as well as the
crossovers and the nonstrikers—and continued to do so
during the lockout.7 It is self-evident that the Respon-
dent’s retention of the crossover employees and non-
strikers during the lockout augmented its effort to main-
tain continued production. The Respondent’s retention
of these employees during the lockout was fully consis-
tent with its lawful use of temporary replacements and
others to maintain operations during the lockout.
Our dissenting colleague does not and cannot dispute
that the crossovers and nonstrikers lawfully aided the
Respondent’s maintenance of operations during the
strike. Similarly, the dissent does not dispute that the
Respondent lawfully could have hired temporary re-
placement employees for assistance in maintaining op-
erations during the lockout. There is no support for the
dissent’s contention that the Respondent had to establish
that the crossovers and the nonstrikers were indispensa-
ble to continued operations before it could retain them
during the lockout instead of looking to less experienced
temporary replacements. The effect of the dissent’s posi-
tion is to visit on the crossover and nonstriking employ-
ees the consequences of the gamble taken by the employ-
ees who elected to remain on strike, by placing them in a
worse position than they would have been in if the strike
had not ended. See Encino-Tarzana Regional Medical
Center, 332 NLRB 914 (2000) (employer lawfully sus-
pended its “call off” procedure during period following
strike, when replacement employees were lawfully work-
ing, where implementing it would have resulted in dis-
placement of crossovers by more senior former strikers).
This we decline to do.
The Lockout was not Motivated by Antiunion Animus
Notwithstanding our finding that that the lockout as im-
plemented served a legitimate business interest, a violation
of Section 8(a)(1) and (3) may still be found if the evi-
dence warrants an inference that the Respondent's use of
the lockout was motivated by antiunion animus. See Cen-
tral Illinois Public Service Co., 326 NLRB at 933. We
have carefully searched the record and find no evidence
that the lockout was motivated by antiunion animus.

7 See Harter Equipment, supra at 600 (employer’s use of temporary
replacements during a lawful lockout does not violate the Act).
The parties have stipulated that the Respondent bar-
gained in good faith throughout the negotiations. The
Respondent further fully complied with an information
request made by the Union. The General Counsel does
not allege any violations of the Act by the Respondent
other than the partial lockout itself. With regard to the
lockout, the parties have stipulated that the Respondent
accepted crossover employees back to work without re-
gard to their membership status in the Union.8 We ac-
cordingly find this to be a case in which “not only is
there absent in the record any independent evidence of
improper motive, but the record contains positive evi-
dence of the [Respondent’s] good faith.” NLRB v.
Brown Food Store, 380 U.S. 278, 290 (1965).9
Apparently recognizing that there is no evidence of
discrimination based on membership, our dissenting col-
league argues that there was discrimination based upon
the Section 7 right to continue striking. The argument is
that the Respondent distinguished between those who did
not strike or who abandoned the strike and those who
remained on strike until the Union called the strike off.
Concededly, the Respondent made this distinction, but it
does not follow that the distinction was an unlawful one.
For, under Great Dane, “discrimination” can be lawful if
there is a legitimate and substantial justification for it. In
our view, there was such a justification. That justifica-
tion was to place economic pressure on the Union and
the employees to accept the Respondent’s bargaining
position.10 Concededly, the lockout was not a total one.
But that does not remove the justification. The non-
strikers and crossovers had decided that they did not
wish to suffer the loss of pay associated with a strike. It
makes no difference whether they did so because they no

8 Compare Schenk Packing Co., 301 NLRB 487 (1991) (lockout
unlawful where respondent announced that union members would not
be hired as replacements during the lockout and unit employees would
be considered for employment only if they resigned from the union).
9 We distinguish Daily News of Los Angeles, 314 NLRB 1236,
(1994), enfd. 73 F.3d 406 (D. C. Cir. 1996), cert. denied 519 U.S. 1090
(1997), cited by our colleague, where the Board found the employer’s
unilateral action (of withholding annual merit wage increases from
employees during negotiations for an initial contract) was “inconsistent
with the right to bargain collectively under Sec. 8(a)(5) and (1)” and
thus not to be analyzed under Great Dane, supra. Instead, we find the
situation more similar to the lockout found lawful in American Ship,
supra at 310, distinguished in Daily News of Los Angeles, supra at
1243, where the purpose of the lockout was found “merely to bring
about a settlement of a labor dispute on favorable terms,” and thus not
“inconsistent with the right to bargain collectively.” As noted above,
the parties have stipulated that throughout the course of negotiations,
the Respondent and the Union met and bargained in good faith.
10 As noted above, this is the business justification that the Respon-
dent has asserted at all times since its September 6 letter to the Union
notifying it of the lockout. Thus, our dissenting colleague incorrectly
claims that we have “improvised” this business justification.
MIDWEST GENERATION, EME, LLC 73
longer shared the Union's goals or because they simply
could not afford to go without a paycheck.11 The signifi-
cant point is that it was no longer necessary for the Re-
spondent to place additional pressure upon them in order
for Respondent to achieve its bargaining goals, for these
employees had already eschewed the strike weapon dur-
ing the strike.12 To be sure, the Respondent could have
locked them out as well. However, there is nothing in
the law that requires an employer to use the maximum
economic pressure. If the employer believes that lesser
pressure will suffice, he can use that lesser pressure.13
At bottom, the issue here is whether the distinction
made by the Respondent (nonstrikers and crossovers vs.
those who stayed on strike) was for the purpose of pun-
ishing the latter or was for the purpose of winning the
economic battle. We believe that the General Counsel
has not shown the former.14
The main argument of the General Counsel and the
Union is that the timing of the lockout demonstrates
animus. As discussed above, they contend that the Re-
spondent purposefully delayed implementing the lockout
from August 31 until September 6 to allow the six cross-
over employees who had offered to return to work before
August 31 to be reinstated and processed onto the payroll
before the start of the lockout. We find no meaningful

11 Our dissenting colleague asserts that the nonstrike/crossover em-
ployees’ subjective reason for working during the strike “makes all the
difference.” We disagree. Irrespective of their reasons, the significant
point is that the Respondent considered it unnecessary to place the same
pressure on them as on those who stuck with the strike until the end of the
strike. And, our colleague errs when he says that the latter group es-
chewed the strike weapon. They stuck with it until the end of the strike.
12 On the other hand, those employees who continued to strike until
the Union’s unconditional offer on August 31 did not eschew the strike
weapon during the strike and, therefore, it was a legitimate business
justification for the Respondent to exert additional economic pressure
on them in order to achieve its bargaining goals. Thus, we do not agree
with our dissenting colleague that the Respondent could not make a
lawful distinction between those employees who eschewed the strike
weapon during the strike and those who stayed on strike until the end of
the strike.
13 See International Paper Co. v. NLRB, 115 F.3d 1045, 1052 (D.C.
Cir. 1997) (discussing business justification standard); Tidewater Con-
struction Corp., 333 NLRB 1264, 1269 (2001), order vacated on other
grounds sub nom. Operating Engineers Local 147 v. NLRB, 294 F.3d
186 (D.C. Cir. 2002), supplemental decision on remand 341 NLRB 456
(2004) (reasonable justification for employer to distinguish between
crossover employee and those who were strikers and still opposed
employer’s contract demands when implementing lockout); Sociedad
Espanola de Auxillo de Puerto Rico, 342 NLRB 458 (2004) (em-
ployer’s reasonable concern for continuing operations sufficient to
establish business justification); Harter Equipment, 280 NLRB 597,
600 fn. 9 (1986) (nonfrivolous reason sufficient), affd. sub nom. Oper-
ating Engineers Local 825 v. NLRB, 829 F.2d 458 (3d. Cir. 1987).
14 Since the Respondent showed a legitimate justification for locking
out the one group and not the other, the burden was on the General
Counsel to show that the real motive for the distinction was to punish
those who stuck with the strike.
evidentiary support for this contention, however. Neither
the General Counsel nor the Union point to any specific
evidence, and we find none in the record, establishing
that the Respondent timed the commencement of the
lockout because of antiunion considerations. Nothing in
the record contradicts the parties’ explicit stipulation that
the Respondent simply advised the Union on September
4 that it “was evaluating the Union’s offer to return to
work” and “had not reached any decision.” We cannot
make a finding that the Respondent’s lockout was unlaw-
fully motivated based on nothing more than specula-
tion.15 There is no independent evidence that the Re-
spondent's partial lockout was motivated by antiunion
animus, and the dissent does not contend otherwise.16
IV. CONCLUSION
The Supreme Court long ago made clear that “proper
analysis” of lockouts “demands that the simple intention
to support the employer’s bargaining position as to com-
pensation and the like be distinguished from a hostility to
the process of collective bargaining which could suffice
to render a lockout unlawful.” American Ship Building
Co. v. NLRB, supra, at 309. The record shows, and we
conclude, that the Respondent’s lockout at issue here
falls firmly into the former, lawful category.
CONCLUSIONS OF LAW
1. Respondent Midwest Generation, EME, LLC, is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. International Brotherhood of Electrical Workers,
Local 15, AFL–CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent has not violated the Act as alleged
in the complaint.
ORDER
The complaint is dismissed.
MEMBER WALSH, dissenting.
There can be no doubt that the Respondent’s partial
lockout discriminated among bargaining unit employees
based on the extent of their exercise of the protected right
to strike. Employees who participated in the strike for its

15 Although the Board “is permitted to draw reasonable inferences,
and to choose between fairly conflicting views of the evidence[,]” it
“cannot rely on suspicion, surmise, implications, or plainly incredible
evidence.” Concepts & Designs, Inc. v. NLRB, 101 F.3d 1243, 1245
(8th Cir. 1996) (internal quotation omitted).
16 Compare O’Daniel Oldsmobile, Inc., 179 NLRB 398, 402 (1969)
(partial lockout unlawful where “abundant” evidence of antiunion
animus present); ABCO Engineering Corp., 201 NLRB 686, 689
(1973), enfd. mem. 505 F.2d 735 (8th Cir. 1974) (antiunion remark by
company president supported finding unlawful shutdown of plant to all
employees but one nonstriker).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD74
full term were not permitted to return to work. By con-
trast, employees who did not participate in the strike at
all (nonstrikers) and employees who initially participated
in the strike but then abandoned it (crossover employees)
were permitted to return to work. Because “it has been
proved that the employer engaged in discriminatory con-
duct . . . the burden is upon the employer to establish that
he was motivated by legitimate objectives since proof of
motivation is most accessible to him.” NLRB v. Great
Dane Trailers, 388 U.S. 26, 34 (1967). The majority
acknowledges that there was “discrimination” within the
meaning of Great Dane, but argues that there was a le-
gitimate and substantial business justification for it. The
record shows, however, that the Respondent has failed to
provide any substantiation for its asserted business justi-
fication. Therefore, a violation of Section 8(a)(3) has
been established under the framework set forth in Great
Dane.1
The Respondent does not argue that it needed the non-
strikers and crossover employees to maintain operations
during the lockout.2 Further, there is no evidence what-
soever in the record establishing that the Respondent
retained the nonstrikers and the crossover employees in
order to continue operating during the lockout. To the
contrary, the Respondent stipulated that during the strike
that immediately preceded the lockout it “successfully”
maintained operations using only “supervisory personnel,
contractors and some temporary employees.” Notwith-
standing the complete lack of supporting argument and
evidence, the majority sua sponte proclaims that the Re-
spondent’s operational needs justified the partial lockout.
The majority’s concoction of a post hoc operational ra-
tionalization for the partial lockout does not and cannot
fulfill the Respondent’s obligation to proffer a legitimate
and substantial business justification. See Inland Steel
Co., 257 NLRB 65, 68 (1981) (“The employer alone is
responsible for its conduct and it alone bears the burden
of explaining the motivation for its actions.”), enfd.
mem. 681 F.2d 819 (7th Cir. 1982).
I accordingly turn to the business justification that the
Respondent, in fact, has advanced. The Respondent con-
tends that it did not lockout the nonstrikers and the cross-
over employees because they “had removed themselves
from the Union’s economic action,” and pressuring them
to abandon the Union’s bargaining demands was unneces-

1 Because the Respondent has not shown a business justification, we
need not decide whether the partial lockout was “inherently destruc-
tive” of employee rights or whether the adverse effect was “compara-
tively slight.” 388 U.S. 33–34.
2 In two prior cases, the Board found partial lockouts to be justified
by business exigencies. See Bali Blinds Midwest, 292 NLRB 243
(1988); Laclede Gas Co., 187 NLRB 243 (1970).
sary. The Respondent, however, presented no evidence of
any kind establishing that the nonstrikers and the crossover
employees in fact abandoned the Union’s bargaining posi-
tion. Neither the Respondent nor the majority has cited
any factual basis whatsoever substantiating the asserted
business justification. See Great Dane Trailers, supra,
388 U.S. at 34 (employer must “come forward with evi-
dence” of its business justification).3
Absent such required evidence, the Respondent’s busi-
ness justification rests only on the questionable proposi-
tion that working for a struck employer may, without
more, be equated with abandonment of the Union’s bar-
gaining demands. The Board and the courts, however,
have long recognized that employees may cross their
union’s picket line for numerous reasons. These reasons
include economic concerns, an unwillingness to support
the particular strike in progress, an unwillingness to
gamble on the success of the strike, and a philosophical
objection to strikes in general.4 But the Respondent does
not provide any principled basis for selecting its pre-
ferred reason. Thus, the Respondent’s business justifica-
tion is based on nothing more than speculation as to the
motive of the crossovers and the nonstrikers.
Surprisingly, the majority claims that “[i]t makes no dif-
ference” why the crossovers and the nonstrikers acted as
they did. Actually, it makes all the difference. Under
Great Dane, the burden is on the Respondent to establish a
business justification for the partial nature of its lockout.
As discussed above, the Respondent’s asserted business
justification rests on the premise that, unlike the full-term
strikers, the crossovers and the nonstrikers abandoned the
Union’s bargaining position. That premise was not
proven. Therefore, the Respondent has utterly failed to
substantiate its asserted business justification.5

3 Compare, e.g., Central Illinois Public Service Co., 326 NLRB 928,
931 (1998), rev. denied sub nom. Electrical Workers Local 702 v.
NLRB, 215 F.3d 11 (D.C. Cir. 2000), cert. denied 531 U.S. 1051 (2000)
(respondent’s proffered business justification supported by “documen-
tary evidence”); and A.S. Abell Co. v. NLRB, 598 F.2d 876, 879 (4th
Cir. 1979) (“proof teeming” of respondent’s business justification);
with Allied Industrial Workers Local 289 v. NLRB, 476 F.2d 868, 878
(D.C. Cir. 1973) (respondent failed to prove business justification
where it did not introduce supporting testimony).
4 See, e.g., Pennco, Inc., 250 NLRB 716, 717–718 (1980), enfd. 684
F.2d 340 (6th Cir. 1982), cert. denied 459 U.S. 994 (1982); Windham
Community Memorial Hospital, 230 NLRB 1070, 1073 (1977) (“em-
ployees who, for whatever reason, rejected the strike as a means for
attaining bargaining objectives”), enfd. 577 F.2d 805 (2d Cir. 1978);
Allied Industrial Workers Local 289 v. NLRB, supra at 881. See gener-
ally NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775 (1990).
5 The majority’s reliance on Tidewater Construction Corp., 333
NLRB 1264, 1269 (2001), order vacated sub nom. Operating Engineers
Local 147 v. NLRB, 294 F.3d 186 (D.C. Cir. 2002), supplemental deci-
sion on remand 341 NLRB 456 (2004), is misplaced. Tidewater in-
volved only one single crossover employee, who resigned from the
MIDWEST GENERATION, EME, LLC 75
The majority further attempts to justify the partial na-
ture of the lockout on the basis that the crossovers and
the nonstrikers had “already eschewed the strike weapon
during the strike” and thus it was not necessary for the
Respondent to lock them out. At the time the Respon-
dent instituted its partial lockout, however, the entire
bargaining unit had “eschewed” the strike weapon: the
Union had ended the strike and made an unconditional
offer to return to work.
The majority concludes that “[a]t bottom” the General
Counsel has not shown that “the distinction made by the
Respondent (nonstrikers and crossovers vs. those who
stayed on strike) was for the purpose of punishing the
latter.” Under Great Dane, however, the General Coun-
sel was not saddled with that burden. Because the Gen-
eral Counsel has established that the adverse effect of the
Respondent’s discriminatory conduct on employee rights
was at least “comparatively slight,” and because the Re-
spondent has not “come forward with evidence of legiti-
mate and substantial business justifications for the con-
duct,” under the Great Dane framework “an antiunion
motivation [need not] be proved to sustain the charge.”
388 U.S. at 34.
A partial lockout distinguishing between strikers and
nonstrikers has a powerful negative effect on Section 7
rights. The effect of the lockout’s disparate treatment of
employees is to undermine adherence to the Union by
demonstrating to employees the advantages from the
standpoint of job security of refraining from concerted
activity. McGwier Co., 204 NLRB 492, 496 (1973);
O’Daniel Oldsmobile, Inc., 179 NLRB 398, 402 (1969).
For this reason, the law requires that a partial lockout be

union, and was not locked out. Here, none of the approximately 53
crossover employees resigned from the Union. Thus, the judge’s
statement in Tidewater that the lone employee was “apparently” willing
to abandon the union’s bargaining demands is premised on facts not
present here. Further, neither the Board nor the reviewing court spe-
cifically addressed the judge’s finding.
justified by substantial business considerations.6 As dis-
cussed above, the Respondent does not even argue that it
needed the nonstrikers and the crossovers to maintain op-
erations during the lockout. Nevertheless, the majority
asserts an operational justification on the Respondent’s
behalf. Apparently recognizing the weakness of its posi-
tion, the majority improvises a second “justification” that
has nothing at all to do with continuing business opera-
tions: the majority asserts that the Respondent was privi-
leged to discriminate against its employees for the purpose
of placing economic pressure on them and the Union to
accept the Respondent’s bargaining position. It is well
established, however, that “not all economic weapons se-
riously affecting employee rights may be employed with
impunity merely because employed in aid of one’s bar-
gaining position.” Daily News of Los Angeles, 315 NLRB
1236, 1243 (1994), enfd. 73 F.3d 406 (D.C. Cir. 1996),
cert. denied 519 U.S. 1090 (1997). Given the significant
adverse effect of the Respondent’s partial lockout on Sec-
tion 7 rights, and the complete absence of any argument or
evidence of an operational justification for it, the majority
errs in validating its use by simply declaring it a permissi-
ble tactic to gain bargaining leverage.
In conclusion, the majority here has abdicated its re-
sponsibility to evaluate the Respondent’s business justifi-
cation. Instead, it invents its own justifications and ig-
nores the one the Respondent has presented. By doing so,
the majority has effectively negated the business justifica-
tion requirement entirely. The majority’s one-sided ap-
proach fails to reckon with the “ultimate problem” in de-
termining the lawfulness of the Respondent’s partial lock-
out: “the balancing of the conflicting legitimate interests.”
NLRB v. Truck Drivers Union, 353 U.S. 87, 96 (1957).

6 See Sociedad Espanola de Auxillo de PR, 342 NLRB 458 (2004)
(Member Liebman dissenting) (merely articulating a plausible reason
for a lockout is not enough to establish business justification).