American Ship Building Company v. National Labor Relations Board/Opinion of the Court

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White

United States Supreme Court

380 U.S. 300

AMERICAN SHIP BUILDING COMPANY  v.  NATIONAL LABOR RELATIONS BOARD

 Argued: Jan. 21, 1965. --- Decided: March 29, 1965


The American Ship Building Company seeks review of a decision of the United States Court of Appeals for the District of Columbia enforcing an order of the National Labor Relations Board which found that the company had committed an unfair labor practice under §§ 8(a)(1) and 8(a)(3) of the National Labor Relations Act. [1] The question presented is that expressly reserved in National Labor Relations Board v. Truck Drivers Local Union, etc., 353 U.S. 87, 93, 77 S.Ct. 643, 646, 1 L.Ed.2d 676; namely, whether an employer commits an unfair labor practice under these sections of the Act when he temporarily lays off or 'locks out' his employees during a labor dispute to bring economic pressure in support of his bargaining position. To resolve an asserted conflict among the circuits [2] upon this important question of federal labor law we granted certiorari, 379 U.S. 814, 85 S.Ct. 69, 13 L.Ed.2d 27.

The American Ship Building Company operates four shipyards on the Great Lakes-at Chicago, at Buffalo, and at Toledo and Lorain, Ohio. The company is primarily engaged in the repairing of ships, a highly seasonal business concentrated in the winter months when the freezing of the Great Lakes renders shipping impossible. What limited business is obtained during the shipping season is frequently such that speed of execution is of the utmost importance to minimize immobilization of the ships.

Since 1952 the employer has engaged in collective bargaining with a group of eight unions. Prior to the negotiations here in question, the employer had contracted with the unions on five occasions, each agreement having been preceded by a strike. The particular chapter of the collective bargaining history with which we are concerned opened shortly before May 1, 1961, when the unions notified the company of their intention to seek modification of the current contract, due to expire on August 1.

At the initial bargaining meeting on June 6, 1961, the company took the position that its competitive situation would not allow increased compensation. The unions countered with demands for increased fringe benefits and some unspecified wage increase. Several meetings were held in June and early July during which negotiations focussed upon the fringe benefit questions without any substantial progress. At the last meeting, the parties resolved to call in the Federal Mediation and Conciliation Service, which set the next meeting for July 19. At this meeting, the unions first unveiled their demand for a 20-cent-an-hour wage increase and proposed a six-month extension of the contract pending continued negotiations. The employer rejected the proposed extension because it would have led to expiration during the peak season.

Further negotiations narrowed the dispute to five or six issues, all involving substantial economic differences. On July 31, the eve of the contract's expiration, the employer made a proposal; the unions countered with another, revived their proposal for a six-month extension, and proposed in the alternative that the existing contract, with its no-strike clause, be extended indefinitely with the terms of the new contract to be made retroactive to August 1. [3] After rejection of the proposed extensions, the employer's proposal was submitted to the unions' membership; on August 8 the unions announced that this proposal had been overwhelmingly rejected. The following day, the employer made another proposal which the unions refused to submit to their membership; the unions made no counteroffer and the parties separated without setting a date for further meetings, leaving this to the discretion of the conciliator.

Thus on August 9, after extended negotiations, the parties separated without having resolved substantial differences on the central issues dividing them and without having specific plans for further attempts to resolve them-a situation which the trial examiner found was an impasse. Throughout the negotiations, the employer displayed anxiety as to the unions' strike plans, fearing that the unions would call a strike as soon as a ship entered the Chicago yard or delay negotiations into the winter to increase strike leverage. The union negotiator consistently insisted that it was his intention to reach an agreement without calling a strike; however, he did concede incomplete control over the workers-a fact borne out by the occurrence of a wildcat strike in February 1961. Because of the danger of an unauthorized strike and the consistent and deliberate use of strikes in prior negotiations, the employer remained apprehensive of the possibility of a work stoppage.

In light of the failure to reach an agreement and the lack of available work, the employer decided to lay off certain of his workers. On August 11 the employees received a notice which read: 'Because of the labor dispute which has been unresolved since August 1, 1961, you are laid off until further notice.' The Chicago yard was completely shut down and all but two employees laid off at the Toledo yard. A large force was retained at Lorain to complete a major piece of work there and the employees in the Buffalo yard were gradually laid off as miscellaneous tasks were completed. Negotiations were resumed shortly after these layoffs and continued for the following two months until a two-year contract was agreed upon on October 27. The employees were recalled the following day.

Upon claims filed by the unions, the General Counsel of the Board issued a complaint charging the employer with violations of §§ 8(a)(1), (a)(3), and (a) (5). [4] The trial examiner found that although there had been no work in the Chicago yard since July 19, its closing was not due to lack of work. Despite similarly slack seasons in the past, the employer had for 17 years retained a nucleus crew to do maintenance work and remain ready to take such work as might come in. The examiner went on to find that the employer was reasonably apprehensive of a strike at some point. Although the unions had given assurances that there would be no strike, past bargaining history was thought to justify continuing apprehension that the unions would fail to make good their assurances. It was further found that the employer's primary purpose in locking out his employees was to avert peculiarly harmful economic consequences which would be imposed on him and his customers if a strike were called either while a ship was in the yard during the shipping season or later when the yard was fully occupied. The examiner concluded that the employer:

'was economically justified and motivated in laying off its employees when it did, and the fact that its judgment was partially colored by its intention to break the impasse which existed is immaterial in the peculiar and special circumstances of this case. Respondent, by its actions, therefore, did not violate sections 8(a)(1), (3), and (5) of the Act.'

A three-to-two majority of the Board rejected the trial examiner's conclusion that the employer could reasonably anticipate a strike. Finding the unions' assurances sufficient to dispel any such apprehension, the Board was able to find only one purpose underlying the layoff: a desire to bring economic pressure to secure prompt settlement of the dispute on favorable terms. The Board did not question the examiner's finding that the layoffs had not occurred until after a bargaining impasse had been reached. Nor did the Board remotely suggest that the company's decision to lay off its employees was based either on union hostility or on a desire to avoid its bargaining obligations under the Act. The Board concluded that the employer 'by curtailing its operations at the South Chicago yard with the consequent layoff of the employees, coerced employees in the exercise of their bargaining rights in violation of Section 8(a)(1) of the Act, and discriminated against its employees within the meaning of Section 8(a)(3) of the Act.' [5] 142 N.L.R.B., at 1364-1365.

The difference between the Board and the trial examiner is thus a narrow one turning on their differing assessments of the circumstances which the employer claims gave it reason to anticipate a strike. Both the Board and the examiner assumed, within the established pattern of Board analysis, [6] that if the employer had shut down its yard and laid off its workers solely for the purpose of bringing to bear economic pressure to break an impasse and secure more favorable contract terms, an unfair labor practice would be made out. 'The Board has held that, absent special circumstances, an employer may not during bargaining negotiations either threaten to lock out or lock out his employees in aid of his bargaining position. Such conduct the Board has held presumptively infringes upon the collective-bargaining rights of employees in violation of Section 8(a)(1) and the lockout, with its consequent layoff, amounts to discrimination within the meaning of Section 8(a)(3). In addition, the Board has held that such conduct subjects the Union and the employees it represents to unwarranted and illegal pressure and creates an atmosphere in which the free opportunity for negotiation contemplated by Section 8(a)(5) does not exist.' Quaker State Oil Refining Corp., 121 N.L.R.B. 334, 337.

The Board has, however, exempted certain classes of lockouts from proscription. 'Accordingly, it has held that lockouts are permissible to safeguard against * * * loss where there is reasonable ground for believing that a strike was threatened or imminent.' Ibid. Developing this distinction in its rulings, the Board has approved lockouts designed to prevent seizure of a plant by a sitdown strike, Link-Belt Co., 26 N.L.R.B. 227; to forestall repetitive disruptions of an integrated operation by 'quickie' strikes, International Shoe Co., 93 N.L.R.B. 907; to avoid spoilage of materials which would result from a sudden work stoppage, Duluth Bottling Assn., 48 N.L.R.B. 1335; and to avert the immobilization of automobiles brought in for repair, Betts Cadillac Olds, Inc., 96 N.L.R.B. 268. In another distinct class of cases the Board has sanctioned the use of the lockout by a multiemployer bargaining unit as a response to a whipsaw strike against one of its members. Buffalo Linen Supply Co., 109 N.L.R.B. 447, rev'd, sub. nom. Truck Drivers Local Union, etc. v. National Labor Relations Board, 2 Cir., 231 F.2d 110, rev'd, 353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676. [7]

In analyzing the status of the bargaining lockout under §§ 8(a)(1) and (3) of the National Labor Relations Act, it is important that the practice with which we are here concerned be distinguished from other forms of temporary separation from employment. No one would deny that an employer is free to shut down his enterprise temporarily for reasons of renovation or lack of profitable work unrelated to his collective bargaining situation. Similarly, we put to one side cases where the Board has concluded on the basis of substantial evidence that the employer has used a lockout as a means to injure a labor organization or to evade his duty to bargain colectively. Hopwood Retinning Co., 4 N.L.R.B. 922; Scott Paper Box Co., 81 N.L.R.B. 535. What we are here concerned with is the use of a temporary layoff of employees solely as a means to bring economic pressure to bear in support of the employer's bargaining position, after an impasse has been reached. This is the only issue before us, and all that we decide. [8]

To establish that this practice is a violation of § 8(a)(1), it must be shown that the employer has interfered with, restrained, or coerced employees in the exercise of some right protected by § 7 of the Act. The Board's position is premised on the view that the lockout interferes with two of the rights guaranteed by § 7: the right to bargain collectively and the right to strike. In the Board's view, the use of the lockout 'punishes' employees for the presentation of and adherence to demands made by their bargaining representatives and so coerces them in the exercise of their right to bargain collectively. It is important to note that there is here no allegation that the employer used the lockout in the service of designs inimical to the process of collective bargaining. There was no evidence and no finding that the employer was hostile to its employees' banding to gether for collective bargaining or that the lockout was designed to discipline them for doing so. It is therefore inaccurate to say that the employer's intention was to destroy of frustrate the process of collective bargaining. What can be said is that it intended to resist the demands made of it in the negotiations and to secure modification of these demands. We cannot see that this intention is in any way inconsistent with the employees' rights to bargain collectively.

Moreover, there is no indication, either as a general matter or in this specific case, that the lockout will necessarily destroy the unions' capacity for effective and responsible representation. The unions here involved have vigorously represented the employees since 1952, and there is nothing to show that their ability to do so has been impaired by the lockout. Nor is the lockout one of those acts which are demonstrably so destructive of collective bargaining that the Board need not inquire into employer motivation, as might be the case, for example, if an employer permanently discharged his unionized staff and replaced them with employees known to be possessed of a violent antiunion animus. Cf. National Labor Relations Board v. Erie Resistor Corp., 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308. The lockout may well dissuade employees from adhering to the position which they initially adopted in the bargaining, but he right to bargain collectively does not entail any 'right' to insist on one's position free from economic disadvantage. Proper analysis of the problem demands that the simple intention to support the employer's bargaining position as to compensation and the like be distinguished from a hostility to the process of collective bargaining which could suffice to render a lockout unlawful. See National Labor Relations Board v. Brown, 380 U.S. 278, 85 S.Ct. 980.

The Board has taken the complementary view that the lockout interferes with the right to strike protected under ss 7 and 13 of the Act [9] in that it allows the employer to pre-empt the possibility of a strike and thus leave the union with 'nothing to strike against.' Insofar as this means that once employees are locked out, they are deprived of their right to call a strike against the employer because he is already shut down, the argument is wholly specious, for the work stoppage which would have been the object of the strike has in fact occurred. [10] It is true that recognition of the lockout deprives the union of exclusive control of the timing and duration of work stoppages calculated to influence the result of collective bargaining negotiations, but there is nothing in the statute which would imply that the right to strike 'carries with it' the right exclusively to determine the timing and duration of all work stoppages. The right to strike as commonly understood is the right to cease work-nothing more. No doubt a union's bargaining power would be enhanced if it possessed not only the simple right to strike but also the power exclusively to determine when work stoppages should occur, but the Act's provisions are not indefinitely elastic, content-free forms to be shaped in whatever manner the Board might think best conforms to the proper balance of bargaining power.

Thus, we cannot see that the employer's use of a lockout solely in support of a legitimate bargaining position is in any way inconsistent with the right to bargain collectively or with the right to strike. Accordingly, we conclude that on the basis of the findings made by the Board in this case, there has been no violation of § 8(a)(1).

Section 8(a)(3) prohibits discrimination in regard to tenure or other conditions of employment to discourage union membership. Under the words of the statute there must be both discrimination and a resulting discouragement of union membership. It has long been established that a finding of violation under this section will normally turn on the employer's motivation. See National Labor Relations Board v. Brown, 380 U.S. 278, 85 S.Ct. 980; Radio Officers' Union v. National Labor Relations Board, 347 U.S. 17, 43, 74 S.Ct. 323, 337, 98 L.Ed. 455; National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 46, 57 S.Ct. 615, 628, 81 L.Ed. 893. Thus when the employer discharges a union leader who has broken shop rules, the problem posed is to determine whether the employer has acted purely in disinterested defense of shop discipline or has sought to damage employee organization. It is likely that the discharge will naturally tend to discourage union membership in both cases, because of the loss of union leadership and the employees' suspicion of the employer's true intention. But we have consistently construed the section to leave unscathed a wide range of employer actions taken to serve legitimate business interests in some significant fashion, even though the act committed may tend to discourage union membership. See, e.g., National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 347, 58 S.Ct. 904, 911, 82 L.Ed. 1381. Such a construction of § 8(a)(3) is essential if due protection is to be accorded the employer's right to manage his enterprise. See Textile Workers' Union v. Darlington Mfg. Co., 380 U.S. 263, 85 S.Ct. 994.

This is not to deny that there are some practices which are inherently so prejudicial to union interests and so devoid of significant economic justification that no specific evidence of intent to discourage union membership or other antiunion animus is required. In some cases, it may be that the employer's conduct carries with it an inference of unlawful intention so compelling that it is justifiable to disbelieve the employer's protestations of innocent purpose. Radio Officers' Union v. National Labor Relations Board, supra, 347 U.S. at 44-45, 74 S.Ct. at 337-338; National Labor Relations Board v. Erie Resistor Corp., supra. Thus where many have broken a shop rule, but only union leaders have been discharged, the Board need not listen too long to the plea that shop discipline was simply being enforced. In other situations, we have described the process as the 'far more delicate task * * * of weighing the interests of employees in concerted activity against the interest of the employer in operating his business in a particular manner * * *.' National Labor Relations Board v. Erie Resistor Corp., supra, 373 U.S. at 229, 83 S.Ct. at 1145.

But this lockout does not fall into that category of cases arising under § 8(a)(3) in which the Board may truncate its inquiry into employer motivation. As this case well shows, use of the lockout does not carry with it any necessary implication that the employer acted to discourage union membership or otherwise discriminate against union members as such. The purpose and effect of the lockout were only to bring pressure upon the union to modify its demands. Similarly, it does not appear that the natural tendency of the lockout is severely to discourage union membership while serving no significant employer interest. In fact, it is difficult to understand what tendency to discourage union membership or otherwise discriminate against union members was perceived by the Board. There is no claim that the employer locked out only union members, or locked out any employee simply because he was a union member; nor is it alleged that the employer conditioned rehiring upon resignation from the union. It is true that the employees suffered economic disadvantage because of their union's insistence on demands unacceptable to the employer, but this is also true of many steps which an employer may take during a bargaining conflict, and the existence of an arguable possibility that someone may feel himself discouraged in his union membership or discriminated against by reason of that membership cannot suffice to label them violations of § 8(a) (3) absent some unlawful intention. The employer's permanent replacement of strikers (National Labor Relations Board v. Mackay Radio & Telegraph Co., supra), his unilateral imposition of terms (National Labor Relations Board v. Tex-Tan, Inc., 5 Cir., 318 F.2d 472, 479-482), or his simple refusal to make a concession which would terminate a strike-all impose economic disadvantage during a bargaining conflict, but none is necessarily a violation of § 8(a)(3).

To find a violation of § 8(a)(3), then, the Board must find that the employer acted for a proscribed purpose. Indeed, the Board itself has always recognized that certain 'operative' or 'economic' purposes would justify a lockout. But the Board has erred in ruling that only these purposes will remove a lockout from the ambit of § 8(a)(3), for that section requires an intention to discourage union membership or otherwise discriminate against the union. There was not the slightest evidence and there was no finding that the employer was actuated by a desire to discourage membership in the union as distinguished from a desire to affect the outcome of the particular negotiations in which it was involved. We recognize that the 'union membership' which is not to be discouraged refers to more than the payment of dues and that measures taken to discourage participation in protected union activities may be found to come within the proscription. Radio Officers' Union v. National Labor Relations Board, supra, 347 U.S. at 39-40, 74 S.Ct. at 335. However, there is nothing in the Act which gives employees the right to insist on their contract demands, free from the sort of economic disadvantage which frequently attends bargaining disputes. Therefore, we conclude that where the intention proven is merely to bring about a settlement of a labor dispute on favorable terms, no violation of § 8(a)(3) is shown.

The conclusions which we draw from analysis of §§ 8(a)(1) and (3) are consonant with what little of relevance can be drawn from the balance of the statute and its legislative history. In the original version of the Act, the predecessor of § 8(a)(1) declared it an unfair labor practice '(t)o attempt, by interference, influence, restraint, favor, coercion, or lockout, or by any other means, to impair the right of employees guaranteed in section 4.' [11] Prominent in the criticism leveled at the bill in the Senate Committee hearings was the charge that it did not accord even-handed treatment to employers and employees because it prohibited the lockout while protecting the strike. [12] In the face of such criticism, the Committee added a provision prohibiting employee interference with employer bargaining activities [13] and deleted the reference to the lockout. [14] A plausible inference to be drawn from this history is that the language was deleted to mollify those who saw in the bill an inequitable denial of resort to the lockout, and to remove any language which might give rise to fears that the lockout was being proscribed per se. It is in any event clear that the Committee was concerned with the status of the lockout and that the bill, as reported and as finally enacted, contained no prohibition on the use of the lockout as such.

Although neither § 8(a)(1) nor § 8(a)(3) refers specifically to the lockout, various other provisions of the National Labor Relations Act do refer to the lockout, and these references can be interpreted as a recognition of the legitimacy of the device as a means of applying economic pressure in support of bargaining positions. Thus 29 U.S.C. § 158(d)(4) (1958 ed.) prohibits the use of a strike or lockout unless requisite notice procedures have been complied with; 29 U.S.C. § 173(c) (1958 ed.) directs the Federal Mediation and Conciliation Service to seek voluntary resolution of labor disputes without resort to strikes or lockouts; and 29 U.S.C. §§ 176, 178 (1958 ed.) authorize procedures whereby the President can institute a board of inquiry to forestall certain strikes or lockouts. The correlative use of the terms 'strike' and 'lockout' in these sections contemplates that lockouts will be used in the bargaining process in some fashion. This is not to say that these provisions serve to define the permissible scope of a lockout by an employer. That, in the context of the present case, is a question ultimately to be resolved by analysis of §§ 8(a)(1) and (3).

The Board has justified its ruling in this case and its general approach to the legality of lockouts on the basis of its special competence to weigh the competing interests of employers and employees and to accommodate these interests according to its expert judgment. 'The Board has reasonably concluded that the availability of such a weapon would so substantially tip the scales in the employer's favor as to defeat the Congressional purpose of placing employees on a par with their adversary at the bargaining table.' [15] To buttress its decision as to the balance struck in this particular case, the Board points out that the employer has been given other weapons to counterbalance the employees' power of strike. The employer may permanently replace workers who have gone out on strike, or, by stockpiling and subcontracting, maintain his commercial operations while the strikers bear the economic brunt of the work stoppage. Similarly, the employer can institute unilaterally the working conditions which he desires once his contract with the union has expired. Given these economic weapons, it is argued, the employer has been adequately equipped with tools of economic self-help.

There is of course no question that the Board is entitled to the greatest deference in recognition of its special competence in dealing with labor problems. In many areas its evaluation of the competing interests of employer and employee should unquestionably be given conclusive effect in determining the application of §§ 8(a)(1), (3), and (5). However, we think that the Board construes its functions too expansively when it claims general authority to define national labor policy by balancing the competing interests of labor and management.

While a primary purpose of the National Labor Relations Act was to redress the perceived imbalance of economic power between labor and management, it sought to accomplish that result by conferring certain affirmative rights on employees and by placing certain enumerated restrictions on the activities of employers. The Act prohibited acts which interfered with, restrained, or coerced employees in the exercise of their rights to organize a union, to bargain collectively, and to strike; it proscribed discrimination in regard to tenure and other conditions of employment to discourage membership in any labor organization. The central purpose of these provisions was to protect employee self-organization and the process of collective bargaining from disruptive interferences by employers. Having protected employee organization in countervailance to the employers' bargaining power, and having established a system of collective bargaining whereby the newly coequal adversaries might resolve their disputes, the Act also contemplated resort to economic weapons should more peaceful measures not avail. Sections 8(a)(1) and (3) do not give the Board a general authority to assess the relative economic power of the adversaries in the bargaining process and to deny weapons to one party or the other because of its assessment of that party's bargaining power. National Labor Relations Board v. Brown, 380 U.S. 278, 85 S.Ct. 980. In this case the Board has, in essence, denied the use of the bargaining lockout to the employer because of its conviction that use of this device would give the employer 'too much power.' In so doing, the Board has stretched §§ 8(a)(1) and (3) far beyond their functions of protecting the rights of employee organization and collective bargaining. What we have recently said in a closely related context is equally applicable here:

'(W)hen the Board moves in this area * * * it is functioning as an arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands. It has sought to introduce some standard of properly 'balanced' bargaining power, or some new distinction of justifiable and unjustifiable, proper and 'abusive' economic weapons into * * * the Act. * * * We have expressed our belief that this amounts to the Board's entrance into the substantive aspects of the bargaining process to an extent Congress has not countenanced.' National Labor Relations Board v. Insurance Agents' International Union, 361 U.S. 477, 497-498, 80 S.Ct. 419, 431.

We are unable to find that any fair construction of the provisions relied on by the Board in this case can support its finding of an unfair labor practice. Indeed, the role assumed by the Board in this area is fundamentally inconsistent with the structure of the Act and the function of the sections relied upon. The deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress. Accordingly, we hold that an employer violates neither § 8(a)(1) nor § 8(a)(3) when, after a bargaining impasse has been reached, he temporarily shuts down his plant and lays off his employees for the sole purpose of bringing economic pressure to bear in support of his legitimate bargaining position.

Reversed.

Notes[edit]

^1  142 N.L.R.B. 1362, enforced, 118 U.S.App.D.C. 78, 331 F.2d 839 (1964).

29 U.S.C. § 158(a): 'It shall be an unfair labor practice for an employer-

'(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;

'(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization:'

29 U.S.C. § 157: 'Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment * * *.'

^2  Compare National Labor Relations Board v. Dalton Brick & Tile Corp., 301 F.2d 886 (C.A.5th Cir. 1962); Morand Bros. Beverage Co. v. National Labor Relations Board, 190 F.2d 576 (C.A.7th Cir. 1951), 204 F.2d 529 (1953), with Quaker State Oil Refining Corp. v. National Labor Relations Board, 270 F.2d 40 (C.A.3d Cir. 1959); Utah Plumbing and Heating Contractors Ass'n v. National Labor Relations Board, 294 F.2d 165 (C.A.10th Cir. 1961).

^3  The dissenting members of the Board took the view that the indefinite extension would not have afforded the employer enforcible protection against a strike. 142 N.L.R.B., at 1368.

^4  The complaint was limited to the Chica go yard.

^5  Although the complaint stated a violation of § 8(a)(5) as well, the Board made no findings as to this claim, believing that there would have been no point in entering a bargaining order because the parties had long since executed an agreement. The passage quoted below in the text of this opinion from National Labor Relations Board v. Insurance Agents' International Union, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454 (see pp. 317-318, infra), has even more direct application to the § 8(a)(5) question. See also National Labor Relations Board v. Dalton Brick & Tile Corp., 301 F.2d 886, 894-895 (C.A.5th Cir. 1962).

^6  E.g., Utah Plumbing & Heating Contractors Assn., 126 N.L.R.B. 973; Quaker State Oil Refining Corp., 121 N.L.R.B. 334.

^7  The Board's initial view was that such lockouts are unlawful. Morand Bros. Beverage Co., 91 N.L.R.B. 409; Davis Furniture Co., 100 N.L.R.B. 1016. The Board later embraced the contrary view, Buffalo Linen Supply Co., 109 N.L.R.B. 447, a position earlier taken by the Ninth Circuit in reversing the Davis Furniture case sub nom. Leonard v. National Labor Relations Board, 205 F.2d 355 (1953).

^8  Contrary to the views expressed in a concurring opinion filed in this case, we intimate no view whatever as to the consequences which would follow had the employer replaced its employees with permanent replacements or even temporary help. Cf. National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381.

^9  National Labor Relations Act as amended, § 13, 61 Stat. 151, 29 U.S.C. § 163 (1958 ed.): 'Nothing in this subchapter, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.'

^10  Of course to the extent that the employer-induced work stoppage did not accomplish objectives which could be achieved by ancillary measures, such as picketing, the union would not be precluded from employing those measures.

^11  1 Legislative History of the National Labor Relations Act, 1935, 3 (hereafter Leg.Hist.). Section 4 of the bill provided:

'Employees shall have the right to organize and join labor organizations, and to engage in concerted activities, either in labor organizations or otherwise, for the purposes of organizing and bargaining collectively through representatives of their own choosing or for other purposes of mutual aid or protection.' Ibid.

^12  1 Leg.Hist. 406, 545, 570, 946.

^13  S. 2926, § 3(2):

'It shall be an unfair labor practice (f)or employees to attempt, by interference or coercion, to impair the exercise by employers of the right to join or form employer organizations and to designate representatives of their own choosing for the purpose of collective bargaining.' 1 Leg.Hist. 1087.

^14  S. 2926, § 3(1):

'It shall be an unfair labor practice (f)or an employer to attempt, by interference or coercion, to impair the exercise by employees of the right to form or join labor organizations, to designate representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.' Ibid.

^15  Respondent's Brief 17.

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).