Before: Williams, Henderson and Randolph, Circuit Judges.
Karen LeCraft Henderson, Circuit Judge
FOR THE DISTRICT OF COLUMBIA CIRCUIT
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Stephen M. Shapiro argued the cause for the petitioner. Timothy S. Bishop and Andrew E. Zelman were on brief. Evan M. Tager entered an appearance.
David A. Fleischer, Attorney, National Labor Relations Board, argued the cause for the respondent. Linda R. Sher, Associate General Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel, were on brief.
Robert D. Kurnick argued the cause for the intervenors and for amicus curiae AFL-CIO. Marsha S. Berzon, David M. Silberman and Laurence Gold were on joint brief.
Stephen A. Bokat, Robin S. Conrad, Mona C. Zeiberg, Daniel V. Yager, Robert E. Williams, Marshall B. Babson, Stanley R. Strauss, Harold P. Coxson, Jr., Jan Amundson and Maurice Baskin were on brief for amici curiae Chamber of Commerce of the United States, et al. Quentin Riegel entered an appearance.
Opinion for the court filed by Circuit Judge Henderson.
Petitioner International Paper Company (IP) challenges a finding by the National Labor Relations Board (Board) that IP's permanent subcontracting of employee jobs during a lawful lockout violated section 8(a)(1), 8(a)(3) and 8(a)(5) of the National Labor Relations Act (Act), 29 U.S.C. Section(s) 158(a)(1), 158(a)(3), 158(a)(5). The Board concluded that IP's conduct fell into that class of cases that is so "inherently destructive" of employee rights that antiunion motive can be inferred and need not be proved. IP argues that it implemented the permanent subcontract during the lockout solely for economic reasons and that its action does not support an inference of antiunion motive. We grant IP's petition for review and deny the Board's crosspetition for enforcement.
IP manufactures paper products in over 100 facilities throughout the United States. This case involves a labor dispute at IP's paper mill in Mobile, Alabama, where production and maintenance employees are jointly represented by the United Paperworkers International Union (UPIU) and the International Brotherhood of Electrical Workers (collectively, the Unions). IP and the Unions were parties to a collective bargaining agreement in force at the Mobile plant until January 31, 1987. In early January 1987, IP and the Unions began negotiating for a new contract. During the next few weeks the parties met frequently but were unable to reach an agreement. On February 20, IP presented its "best and final" offer and stated its intention to lockout employees if its offer was not accepted. The Unions rejected IP's offer and on March 7, IP unilaterally implemented its proposal.
On March 21, in order to prevent a coordinated strike by the UPIU at several other IP facilities, IP locked out 915 production and 285 maintenance employees at the Mobile mill. Before the lockout IP had entered into a contract with BE&K Construction Company (BE&K) to provide temporary maintenance workers in the event of a work stoppage. Once the lockout began, IP continued to operate the ...