Potter Stewart

“ 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. ”

“ 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 ”

“ 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. ”

“ 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 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. ”

“ 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. ”

“ 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. ”