Midwest Generation, EME, LLC

National Labor Relations Board - Board Decisions

Mar 17, 2008

352 N.L.R.B. 243 (N.L.R.B. 2008)

MIDWEST GENERATION, EME, LLC
352 NLRB No. 36
243
Midwest Generation, EME, LLC and International
Brotherhood of Electrical Workers, Local 15,
AFL–CIO. Case 13–CA–39643–1
March1 17, 2008
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS LIEBMAN AND SCHAUMBER
On September 30, 2004, the National Labor Relations
Board issued its Decision and Order in this proceeding
finding, by a 2–1 panel vote, that the Respondent, Mid-
west Generation, EME, LLC, did not violate Section
8(a)(3) and (1) of the Act by implementing a partial
lockout of bargaining unit employees during the parties’
negotiations for a successor collective-bargaining agree-
ment.1 The Union, International Brotherhood of Electri-
cal Workers, Local 15, AFL–CIO, petitioned the United
States Court of Appeals for the Seventh Circuit for re-
view of the Board’s Order.
On October 31, 2005, the court granted the petition for
review, reversed the findings of the Board, and remanded
the case to the Board with instructions to find that the
partial lockout was an unfair labor practice.2 The court
further directed the Board to consider whether that unfair
labor practice coerced the Union and its members into
ratifying the Respondent’s contract offer, thereby void-
ing the collective-bargaining agreement reached by the
parties.3
By letter dated January 12, 2007, the Board notified
the parties that it had decided to accept the court’s re-
mand and invited them to file statements of position with
respect to the issues raised by the court’s opinion. The
Respondent, the General Counsel, and the Union each
filed a statement of position. The Respondent filed an
answering brief to the statements of position filed by the
General Counsel and the Union. The Union filed an an-
swering brief to the Respondent’s statement of position,
and the Respondent filed a reply brief.
We accept the court’s remand as the law of the case.4
Accordingly, as instructed by the court, we find that the
Respondent’s partial lockout violated Section 8(a)(3) and
(1) of the Act. As discussed below, we further find it

1 343 NLRB 69 (2004).
2 Electrical Workers Local 15 v. NLRB, 429 F.3d 651, 662 (7th Cir.
2005), cert. denied 127 S.Ct. 42 (2006).
3 Id.
4 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Members Liebman and Schaumber constitute a quorum of the three-
member group. As a quorum, they have the authority to issue decisions
and orders in unfair labor practice and representation cases. See Sec.
3(b) of the Act.
appropriate to remand to an administrative law judge the
issues of whether that unfair labor practice coerced the
Union and its members into ratifying the Respondent’s
contract offer, thereby voiding the parties’ collective-
bargaining agreement, and whether other remedial relief
is appropriate.5
Factual Background
The Union commenced an economic strike against the
Respondent on June 28, 2001,6 following unsuccessful
negotiations with the Respondent for a successor collec-
tive-bargaining agreement. On 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.
On September 6, the Respondent declined the Union’s
offer to return to work and instituted a lockout. The Re-
spondent, however, locked out only those employees
who remained on strike when the strike ended. The Re-
spondent did not lock out employees who refrained from
participating in the strike or who initially participated in
the strike but later abandoned it.
During the lockout, the Respondent and the Union
continued to meet and negotiate for a new contract. On
October 16, after the Union accepted the Respondent’s
then-pending offer, the union membership voted to ratify
that agreement. The parties then executed a collective-
bargaining agreement, effective October 22, 2001,
through December 31, 2005.
Prior to the ratification, however, the Union informed
the Respondent that, in its view, if the Board later found
that the Respondent had committed an unfair labor prac-
tice during the lockout, the contract would be “void be-
cause the Company’s unfair labor practice[s] . . . coerced
the employees into accepting it,” and that “[n]othing the
Union or its representatives say or do should be inter-
preted as a waiver of this position.” See Electrical
Workers Local 15, supra, 429 F.3d at 655.
The Respondent ended the lockout on October 22.
Commencing on that date, all formerly locked-out em-
ployees who chose to do so returned to work. Four years
later, following the expiration of the parties’ collective-
bargaining agreement on December 31, 2005, the parties
reached agreement on a successor collective-bargaining

5 On January 28, 2008, the Union and the General Counsel filed a
joint motion to sever claims. On February 19, 2008, the Respondent
filed a response to the motion. The joint motion requests that the Board
sever the issue of appropriate remedial relief for the unlawful partial
lockout from the issue of whether the parties’ collective-bargaining
agreement should be voided. We deny the joint motion as moot, in
light of our decision here.
6 All dates are in 2001, unless otherwise noted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD244
agreement, effective March 6, 2006, through December
31, 2009.
The Board’s Decision on Remand
As stated, we have found that the Respondent’s partial
lockout was unlawful. We have carefully considered the
court’s further directive that we determine whether the
unlawful partial lockout coerced the Union and its mem-
bers into ratifying the Respondent’s contract offer,
thereby voiding the parties’ 2001–2005 collective-
bargaining agreement. We observe, however, that the
parties initially submitted this case to the Board on a
stipulation of facts, and the stipulation appears not to
fully address that issue. Indeed, both the Respondent and
the Union have sought to adduce additional evidence in
their postremand briefs to the Board, and the parties have
filed cross-motions to strike much of that evidence as
being outside the stipulation of facts.7 We find it appro-
priate in these circumstances to remand this issue to an
administrative law judge to reopen the record. The par-
ties may then present evidence concerning the issue of
whether the Respondent’s unlawful partial lockout co-
erced the Union and its members into ratifying the Re-
spondent’s contract offer.
The Union also asserts that the Board should void the
parties’ 2006–2009 collective-bargaining agreement be-
cause the Respondent’s unlawful partial lockout coerced
the Union and its members into agreeing to that contract
as well. Nothing in any Board proceeding or the court’s
decision, which predates the 2006–2009 agreement, ad-
dresses that issue; nor has any unfair labor practice
charge alleged such coercion. Accordingly, without
passing on the viability of the Union’s assertion, our re-
mand to the administrative law judge will permit the par-
ties to present argument and evidence on whether void-
ing of the 2006–2009 agreement is within the Board’s
remedial authority and, if so, whether it is an appropriate
remedy in the circumstances of this case. The judge shall
make findings and recommendations on this issue, sub-
ject ultimately to Board review.
Having found that the Respondent has engaged in un-
fair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act, we shall order it to cease and desist
from engaging in such conduct, and post an appropriate
notice. We shall also order the Respondent to take cer-
tain affirmative action designed to effectuate the policies
of the Act.

7 The Respondent filed a motion to strike portions of the Union’s
statement of position. The Union filed a reply and a motion to strike
portions of the respondent’s statement of position. Consistent with this
decision, we deny both motions as moot.
REMEDY
To remedy the Respondent’s unlawful lockout of its
employees from September 6 to October 22, the Respon-
dent will be required to make those employees whole for
any loss of pay and other benefits incurred by them as a
result of the lockout, with the amounts owed to be de-
termined in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest on such amounts
to be computed in accordance with New Horizons for the
Retarded, 283 NLRB 1173 (1987). See Schenk Packing
Co., 301 NLRB 487, 492 (1991).8
ORDER
The National Labor Relations Board orders that the
Respondent, Midwest Generation, EME, LLC, Chicago,
Illinois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in the Union by dis-
criminatorily locking out only employees who partici-
pated in the Union’s strike for its full duration, while not
locking out employees who refrained from participating
in the strike or those employees who initially participated
in the strike but then abandoned it.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole those employees who were unlawfully
locked out from September 6 to October 22, 2001, for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against them, in the manner set
forth in the remedy section of this decision.
(b) Within 14 days from the date of this Order, remove
from its files any reference to its unlawful lockout of
those employees, and within 3 days thereafter notify the
employees in writing that this has been done and that the
unlawful lockout will not be used against them in any
way.

8 The Respondent argues that make-whole relief is not appropriate in
this case. We find no basis here for departing from the Board’s usual
remedy for an unlawful lockout: to make employees whole for any loss
of earnings and other benefits suffered as a result of being unlawfully
locked out. See, e.g., Bunting Bearings Corp., 349 NLRB 1070, 1073
(2007); Allen Storage & Moving Co., 342 NLRB 501, 504, 519 (2004);
Schenk Packing Co., supra, 301 NLRB at 492.
We also find no merit to the Union’s contention that make-whole re-
lief should commence on August 31, the date the Union ended the
strike and made an unconditional offer to return to work. Make-whole
relief customarily encompasses the duration of the unlawful lockout.
See, e.g., Bunting Bearings Corp., supra at 1073, 1075; Schenk Packing
Co., supra at 492. There has been no finding in this proceeding that the
Respondent’s waiting until September 6 to implement the lockout was
unlawful. For this reason, we have provided that the backpay period
shall begin on September 6.
MIDWEST GENERATION, EME, LLC 245
(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Within 14 days after service by the Region, post at
its office in Chicago, Illinois, and its other facilities lo-
cated in the State of Illinois where bargaining unit em-
ployees are employed, copies of the attached notice
marked “Appendix.”9 Copies of the notice, on forms
provided by the Regional Director for Region 13, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facilities involved in
these proceedings, it shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since September 6, 2001.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that this proceeding is re-
manded for further appropriate action as set forth above.
Because this proceeding was initially adjudicated by the
Board upon a stipulation of facts, we shall remand this
proceeding to the chief administrative law judge for as-
signment.
IT IS FURTHER ORDERED that the judge to whom the
case is assigned shall afford the parties an opportunity to
present evidence on the remanded issues and shall pre-

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
pare a supplemental decision setting forth credibility
resolutions, findings of fact, conclusions of law, and a
recommended Order. Copies of the supplemental deci-
sion shall be served on all parties, after which the provi-
sions of Section 102.46 of the Board’s Rules and Regula-
tions shall be applicable.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discourage membership in the Union by
discriminatorily locking out only employees who partici-
pated in the Union’s strike for its full duration, while not
locking out employees who refrained from participating
in the strike or those employees who initially participated
in the strike but then abandoned it.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL make whole those employees who were
unlawfully locked out from September 6 to October 22,
2001, for any loss of earnings and other benefits suffered
as a result of the discrimination against them, less any
net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful lockout of those employees, and WE WILL, within 3
days thereafter, notify each employee in writing that this
has been done and that the unlawful lockout will not be
used against them in any way.
MIDWEST GENERATION, EME, LLC