                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 05-1058
LOCAL 15, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL-CIO,
                                                        Petitioner,
                               v.

NATIONAL LABOR RELATIONS BOARD,
                                                       Respondent,
                              and


MIDWEST GENERATION, EME, LLC,
                                                        Intervenor.
                        ____________
              Petition for Review of an Order of the
                National Labor Relations Board.
                        No. 13-CA-39643-1
                        ____________
 ARGUED SEPTEMBER 27, 2005—DECIDED OCTOBER 31, 2005
                   ____________


  Before FLAUM, Chief Judge, and BAUER and SYKES,
Circuit Judges.
  FLAUM, Chief Judge. Petitioner Local 15, International
Brotherhood of Electrical Workers, AFL-CIO (“Union”)
petitions this Court for review of an order of the Na-
tional Labor Relations Board (“NLRB” or “Board”) finding
that the Intervenor, Midwest Generation, EME, LLC
(“Midwest”), did not violate sections 8(a)(1) and (3) of
2                                               No. 05-1058

the National Labor Relations Act (“NLRA”). 29 U.S.C.
§§ 158(a)(1) and (3). Because substantial evidence did not
support the Board’s decision, we reverse the holding and
remand to the Board to determine whether Midwest’s
unfair labor practices render the current collective bargain-
ing agreement void.


                     I. Background
  The Union began an economic strike against Midwest
on June 28, 2001, over stalled negotiations for a new
collective bargaining agreement. Approximately 1150
workers went on strike. Eight employees refused to strike
(“non-participants”). During the course of the strike, 47
employees who were part of the Union made individual
offers to return to work (“crossovers”). Midwest accepted
each of these offers and reinstated the individual employ-
ees. Sixteen employees crossed the picket line in July,
and thirty-one crossed between August 1 and August 30.
Six additional employees made offers to return to work
shortly before the strike ended on August 31. Midwest
returned these last six crossovers to the workforce be-
tween September 1 and September 6. In all, a combina-
tion of sixty-one crossovers and non-participants offered
to return to the workforce before the end of the strike.
  Midwest continued to operate during the course of the
strike, relying upon supervisors, contractors, and some
temporary replacement employees. Midwest hired no
permanent replacements. No evidence that the sixty-one
non-participants and crossovers were necessary to maintain
operations during the strike was submitted. Employees who
returned to work were not questioned concerning their
status in the Union and Midwest did not encourage or
assist any employee in resigning from the Union.
  On Friday, August 31, 2001, after failing to reach a
collective bargaining agreement, the Union members
No. 05-1058                                               3

voted to end their strike and offered to return to work
unconditionally. Midwest initially gave no response to this
offer, but on September 6, 2001, Midwest informed the
Union that it was instituting a lockout. The Union alleges
that the purpose of the six-day delay in announcing the
lockout was to process the last six crossovers.
  The lockout did not include those sixty-one workers
who offered to return to work before the Union made its
unconditional offer on August 31. Midwest locked out
any employee who sought to return to work after the Union
had voted to end the strike; and the lockout continued until
the parties reached a collective bargaining agreement. The
announced purpose of the lockout was to exert pressure
upon the Union to meet Midwest’s contract demands.
  On October 3, 2001, the Union voted on Midwest’s “final
offer.” The Union informed Midwest that it believed if
the NLRB later found Midwest had committed an unfair
labor practice during the lockout, the contract would be
“void because the Company’s unfair labor practice[s] . . .
coerced the employees into accepting it. Nothing the
Union or its representatives say or do should be interpreted
as a waiver of this position.” On October 3, 2001, the Union
rejected the offer. The Union sent a similar notification
letter before a second vote on the same contract. On the
second vote, the contract passed easily. The lockout offi-
cially ended on Monday, October 22, 2001.
   Midwest informed the Union in early September that
it would not allow employees who had not previously offered
to return to work access to their jobs “until a new contract
is agreed to and ratified[.] [E]mployees who had already
returned to work, or were scheduled to return to work prior
to Friday, August 31, 2001 [would] be allowed to continue
to work.”
 Although at times all but eight of the approximately 1,150
workers were on strike, Midwest maintained normal
4                                                No. 05-1058

operations throughout the strike and lockout. Midwest
contends that the non-strikers and crossovers “helped the
company weather the work stoppage’s effects.” Midwest also
contends that the sixty-one employees had “abandoned an
economic strike undertaken for the express purpose
of supporting the Union’s bargaining demands.”
  In response to an unfair labor practice charge filed by the
Union, the General Counsel of the National Labor Relations
Board issued a complaint against Midwest on March 7,
2002, for unfair labor practices in violation of NLRA
sections 8(a)(1) and (3). 29 U.S.C. §§ 158(a)(1) and (3). The
complaint alleged that Midwest committed an unfair labor
practice by refusing to reinstate employees who were on
strike at the time of an unconditional offer to return to
work, while allowing other workers who had already
returned or planned to return to work access to their jobs.
The parties waived an ALJ hearing and stipulated to the
record. The Board issued a Decision and Order on Septem-
ber 30, 2004, finding that Midwest had not violated the Act.
There was a dissent from the three-member board decision.
  There is no evidence of bad faith by either party, nor
is there any evidence that Midwest gave the crossovers
or non-participants special treatment before or after the
lockout.
  The only issue for resolution submitted to the Board, and
therefore the only issue for this Court to review, was
stipulated to by the parties:
      Whether the Company violated Sections 8(a)(1) and
    (3) of the [National Labor Relations] Act by locking
    out and/or refusing to reinstate those employees who
    were on strike at the time of the union’s unconditional
    offer to return to work, while not locking out and/or
    reinstating those individuals employed by the Company
    who, prior to the union’s unconditional offer to return to
    work, had ceased participating in the strike by making
No. 05-1058                                                5

    an offer to return to work, and had either returned to
    work or scheduled a return to work at the Company?


                      II. Discussion
A. Standard of Review/Method of Analysis
  Board Rulings are “entitled to considerable deference so
long as [they are] rational and consistent with the [National
Labor Relations] Act.” NLRB v. Curtin Matheson Scientific,
Inc., 494 U.S. 775, 787 (1990); see also NLRB v. United
Food, Commercial Workers Union, Local 23, 484 U.S. 112,
123 (1987). This Court, however, is not “obliged to stand
aside and rubberstamp [its] affirmance of administrative
decisions that [it] deem[s] inconsistent with a statutory
mandate or that frustrate the congressional policy underly-
ing a statute.” NLRB v. Brown, 380 U.S. 278, 291 (1965).
  This complaint was brought under section 10(a) of the
National Labor Relations Act, 29 U.S.C. § 160(a), for a
violation of sections 8(a)(1) and (3) of the Act. 29 U.S.C.
§§ 158(a)(1) and (3). Section 8 states that it is an unfair
labor practice for an employer to interfere with employees’
rights that are protected by section 7 of the NLRA, which
includes the right to “engage in . . . activities for the
purpose of collective bargaining.” 29 U.S.C. § 157. The basic
procedure to evaluate whether a company has engaged in
an unfair labor practice was first outlined by the Supreme
Court in NLRB v. Great Dane Trailers, Inc., 388 U.S. 26
(1967).
  The first question in the Great Dane framework is
whether the employer’s conduct is “inherently destructive
of important employee rights.” 388 U.S. at 34. Actions that
harm the collective bargaining process, interfere with
employees’ right to strike, or are taken against employees
based upon union status are “inherently destructive.”
Esmark, Inc. v. NLRB, 887 F.2d 739, 748 (7th Cir. 1989). To
6                                                No. 05-1058

be “inherently destructive,” the effect on the collective
bargaining process must be more than temporary; it must
instead establish a barrier to future collective bargaining.
Id. If an action by an employer is inherently destructive
of important rights, no proof of an anti-union motivation is
needed. Great Dane, 388 U.S. at 34.
  A harmful action by an employer that is not inherently
destructive is classified as “comparatively slight.” These two
categories, “inherently destructive” harm and “compara-
tively slight” harm, make up the two prongs of the Great
Dane framework. Under the first prong of the Great Dane
test (“inherently destructive”), an employer’s actions are
submitted to a stringent test. Such actions are permissible
only if after balancing business justifications against
employee rights, the business justification is found to be
superior. Under the second prong of the Great Dane test,
(“comparatively slight”), an employer’s actions are more
likely to be justified. “[A] finding of comparatively slight
harm calls for a threshold test of business justification,
rather than a balancing of interests.” Int’l Bhd. of Boiler-
makers v. NLRB, 858 F.2d 756, 762 n.2 (D.C. Cir. 1988). If
an individual employer’s actions cannot be justified under
the comparatively slight harm standard, which requires
a legitimate and substantial business justification, they
clearly cannot be justified under the “inherently destruc-
tive” standard.
  Under either prong, once it has been established that the
employer’s conduct negatively affects protected section 7
rights, the key question for the Board, informed by Great
Dane, is whether the employer can state a business justifi-
cation for its actions. If an employer can show no legitimate
and substantial business justification, the lockout is
presumptively an unfair labor practice under either prong
of the Great Dane analysis.
  Thus, the question of whether a “legitimate and substan-
tial” business justification exists is a threshold question,
No. 05-1058                                               7

properly asked prior to any decision as to whether an action
is “comparatively slight” or “inherently destructive” under
Great Dane. If a legitimate and substantial busi-
ness justification is found for an employer’s action, the
question of whether the harm caused was “inherently
destructive” or “comparatively slight” is then examined and
the Great Dane analysis proceeds.


B. Failure to Prove a Business Justification
 Apart from which Great Dane prong a particular case
might be analyzed under:
    once it has been proved that the employer engaged in
    discriminatory conduct which could have adversely
    affected employee rights to some extent, 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, Inc., 388 U.S. 26, 34 (1967)
(emphasis added); see also Inland Steel Co., 257 N.L.R.B.
65, 68 (1981), enforced. mem. 681 F.2d 819 (7th Cir. 1982)
(“The employer alone is responsible for its conduct and
it alone bears the burden of explaining the motivation for
its actions.”).
  A “legitimate and substantial” business justification must
have a non-frivolous purpose. Harter Equipment Inc., 280
N.L.R.B. 597, 600 n.9 (1986); see also Great Dane, 388 U.S.
at 38. The issue then is whether Midwest has shown that
its lockout had any business justification that was neither
frivolous nor based upon an impermissible violation of
section 7 rights.
  The Board’s majority opinion advanced two arguments in
support of its finding that Midwest instituted the partial
lockout for the valid purpose of “bringing economic pressure
to bear in support of its legitimate bargaining position.”
8                                                  No. 05-1058

Midwest Generation, 343 N.L.R.B. No. 12, 3 (2004).1 First,
the Board stated that partial lockouts are legal “when
justified by operational needs and without regard to union
membership status.” Id. at 4 (citing Bali Blinds Midwest,
292 N.L.R.B. 243, 246-47 (1988); Laclede Gas Co., 187
N.L.R.B. 243, 243-44 (1970)). Second, the Board concluded
that locking out only those participating in the strike on
August 31 was a lawful means of pressuring holdouts to
abandon their bargaining position.
  The dissent responded to these justifications for the
partial lockout, noting:
    Notwithstanding the complete lack of supporting
    argument and evidence, the majority sua sponte pro-
    claims that the Respondent’s operational needs justified
    the partial lockout. The majority’s concoction of a post
    hoc operational rationalization for the partial lockout
    does not and cannot fulfill the Respondent’s obligation
    to proffer a legitimate and substantial business justifi-
    cation.
Id. at 6 (Walsh, dissenting) (citing Inland Steel Co., 257
N.L.R.B. 65, 68 (1981), enforced. mem. 681 F.2d 819 (7th
Cir. 1982)).


1. Operational needs did not justify the partial
   lockout.
  Prior to the Board’s decision, Midwest offered no proof
that its operational needs justified the partial lockout.


1
   There is a discrepancy between the numbering of the pages
in the slip opinion produced by the Board and given to this Court
by the parties and the page numbers in this opinion as avail-
able on the Westlaw service. The page numbers cited in this
opinion correspond to the page numbers in the slip opinion, which
is part of the record.
No. 05-1058                                                9

Indeed, the record indicates that Midwest’s operational
needs were being “successfully maintained . . . through the
efforts of supervisory personnel, contractors, and some
temporary replacement employees.” In raising the opera-
tional needs justification sua sponte, the Board cited two
cases, Bali Blinds Midwest, 292 N.L.R.B. 243, 246-47 (1988)
and Laclede Gas Co., 187 N.L.R.B. 243, 243-44 (1970).
These cases are not analogous to the factual situation faced
by Midwest. Rather, these cases illustrate the extreme
business exigencies necessary to justify a partial lockout
based upon operational needs.
  In Bali Blinds Midwest, the employer’s partial lockout
was justified because it ensured that repeated work stop-
pages, which were legitimately feared, would not
delay production and result in a loss of customers. 292
N.L.R.B. 243, 246-47 (1988). In Laclede Gas Co., the Board
found that the need to ensure continuing business opera-
tions and avoid public hazards justified the employer’s
disregard of normal seniority practices during a lockout.
187 N.L.R.B. 243, 243-44 (1970) (“[T]he temporary shut-
down of the construction crew’s operations was actually
necessitated by the exigencies of the business opera-
tion[.] . . . [O]perating on the basis of daily contract ex-
tensions was difficult, unproductive, and potentially
dangerous to the public[.] . . . [The lockout] was motivated
by a desire to eliminate those operations which negotiations
had rendered tentative and to protect the [employer] from
overextending itself at a critical moment, all of which were
essentially defensive purposes[.]”) (internal quotation marks
omitted). There has been no comparable allegation of
exigent circumstances in the instant case.
  In its brief, Midwest attempts to support the Board’s
operational needs justification by citing additional cases
in which partial lockouts were permitted. Among those
cases is General Portland, Inc. 283 N.L.R.B. 826 (1987).
Unlike the factual situation faced by Midwest, General
10                                              No. 05-1058

Portland illustrates an extreme situation in which opera-
tional needs justify a partial lockout. General Portland
allowed employees to continue to manage enormous kilns
that operate at 2700 degrees Fahrenheit and take between
twelve hours and three days to shut down completely.
Crossovers continually staffed these kilns in an effort to
prevent “explosions, injury, and damage.” Id. at 827. In
contrast, the record is silent as to any necessity that would
sanction the use of a partial lockout by Midwest.
   The facts of this case further belie the operational needs
justification. First, Midwest’s own claims demonstrate
that it successfully maintained operations throughout the
strike without the use of crossover employees or non-
strikers. Midwest does not argue that the lockout was based
upon operational needs, but rather states its intent “to
pressure [the employees] to abandon [their] demands.”
Second, the last six crossover employees did not even start
work until after the August 31 unconditional offer to return
to work, which demonstrates that these employees were
unnecessary for continued operation. Third, early in the
strike Midwest was able to maintain operations with only
eight of the approximately 1,150 employees who
were members of the bargaining unit. The claim that
these eight employees and/or the last six crossovers,
together representing less than 2% of the total bargain-
ing unit, were so vital to the maintenance of business
operations that it was necessary for Midwest to violate
employees’ section 7 rights stretches the bounds of credu-
lity.
  Every indication in the stipulated facts is that the
crossovers and non-strikers were unnecessary to the
continuation of business operations. Midwest and the
majority opinion of the Board charge the dissent with
advocating for a standard of “indispensab[ility] to continued
operations in order to be retained” during a partial lockout.
The dissent, however, never employs the word “indispens-
No. 05-1058                                               11

able.” The dissent accurately notes that the “Respondent
does not even argue that it needed the non-strikers and
crossovers to maintain operations during the lockout.”
Midwest Generation, 343 N.L.R.B. No. 12, 7 (Walsh,
dissenting) (2004).
  In any event, a standard less demanding than “indispens-
able” cannot provide employers with carte blanche to
lock out employees of their choosing without regard to
seniority or any other criteria. Such an approach would
allow employers acting under the guise of maintaining
business operations to engage in exactly the type of action
Midwest undertook: punishing those who stood with the
Union and rewarding those who crossed picket lines.
   Demanding more than Midwest’s labeling of its con-
duct as “necessary for business operations” does not estab-
lish strike-hiring practices that are difficult for employers
to comply with. Instead, it merely avoids creating a “busi-
ness operations” exception with no limiting principle, which
would sanction discriminatory conduct by an employer
where the employer chooses to announce its position as
“necessary for business operations” without evidence
supporting such a need. Simply put, to justify a partial
lockout on the basis of operational need, an employer must
provide a reasonable basis for finding some employees
necessary to continue operations and others unnecessary.
12                                             No. 05-1058

2. The partial lockout was not justified as a lawful
   means of economically pressuring holdouts.
  Throughout the course of this litigation, Midwest con-
tended that it allowed the non-strikers and crossovers to
return to work because they “had removed themselves from
the Union’s economic action,” making it unnecessary to
pressure them into abandoning the Union’s bargain-
ing position. This allegation rests on the proposition that
“working for a struck employer may, without more, be
equated with abandonment of the Union’s bargaining
demands.” Midwest Generation, 343 N.L.R.B. No. 12, 6
(Walsh, dissenting) (2004). This assumption is fatally
flawed. There can be several reasons why an employee
might choose to cross a picket line. Abandonment of the
Union’s bargaining demands is merely one possible explana-
tion, standing alongside individual financial motivations,
personal relationships with employers, indifference, an
attempt to impress management, etc. Midwest has failed to
offer any direct correlation between employees’ non-partici-
pation in a strike and lack of support for the Union’s
demands.
  Midwest claims that it was unnecessary to lock out the
crossovers and non-strikers because they had taken
“affirmative action in derogation of the Union’s bargaining
position.” Any business justification that relies upon
workers having “removed themselves from the Union’s
economic action,” or argues that by returning to their jobs,
workers had abandoned their demands cannot carry the day
in this case. When Midwest announced the selective
lockout, all of the employees in the bargaining unit had
removed themselves from the economic strike by offering to
return to work. The only distinction between employees was
whether an individual worker had made his or her offer to
return as part of the Union’s action or individually.
 Midwest argues that an employee who has returned to
work no longer demonstrates a commitment to the Union’s
No. 05-1058                                                13

position. Therefore, no economic pressure against such
an employee is required. What Midwest fails to note is
that at the time of the lockout, all employees had offered to
return to work.
  There is no evidence in the record indicating why individ-
ual employees chose not to participate in the strike. It is
unclear and unknown whether non-strikers and crossovers
voted for or against Midwest’s collective bargaining agree-
ment proposals. The Board infers that “it was no longer
necessary for the Respondent to place additional pressure
upon [crossover workers and non-strikers] in order for
[Midwest] to achieve its bargaining goals.” Midwest Genera-
tion, 343 N.L.R.B. No. 12, 5. This statement is without
affirmation in the record of this case. Nothing has been
presented to distinguish the motivation of those who offered
to return to work before August 31 and those who offered to
return to work after August 31. Given this absence of
evidence, the Board’s claim that additional pressure was
necessary for one group, but not another, is unsupportable.
  The Board relied upon Midwest’s post hoc subjective
beliefs to find that crossovers and non-strikers did not back
the Union’s bargaining position. In turn, Midwest relies
upon a common sense notion that employees who cross a
picket line have abandoned the Union’s position. While this
is not an unreasonable conclusion, it is not supported by
any evidence beyond mere conjecture.
  The Board also justified the use of a partial lockout on the
basis that “there is nothing in the law that requires
an employer to use maximum economic pressure.” Mid-
west Generation, 343 N.L.R.B. No. 12, 5. While this state-
ment is a truism, it does not address the relevant question
before the Board. The burden remains upon the employer to
prove that it had a legitimate and substantial basis for its
actions. In this case, the Board appears to find sufficient
any reason presented by Midwest without evidence of a
14                                               No. 05-1058

“legitimate and substantial” basis for distinguishing
between those employees it locked out and those it did not.
  While we find no foundation for the assumption that
those employees who crossed the picket line were not
supporters of the Union’s position, assuming arguendo that
Midwest could irrefutably prove that crossovers and non-
strikers had abandoned the Union’s bargaining position, it
still could not discriminate on this basis.
  Both the NLRB and the Fifth Circuit have found that
an employer “may not discriminate against certain em-
ployees merely because it anticipates that they will honor
a picket line or otherwise engage in protected activity.”
National Fabricators v. NLRB, 903 F.2d 396, 400 (5th Cir.
1990). An employer’s discriminatory lockout on the basis of
a protected activity is unlawful even when it is supportive
of an employer’s bargaining position.
     Lockouts are not all protected . . . . The Seventh Circuit
     in Inland Trucking Co. v. N.L.R.B., 440 F.2d 562 (1971),
     affg. 179 NLRB 350, cert. denied 404 U.S. 858, held
     that an employer violated Section 8(a)(1) and (3) by
     locking out its employees and continuing operation with
     the use of new hires. The American Ship Building rule
     does not give the employer license to pick and choose
     among its employees and suspend those whose pro-
     tected picket line activities are most damaging to it.
     The mere selection of such an employee from among all
     those in the unit for suspension is per se discrimina-
     tory.
Thrift Drug Co., 204 N.L.R.B. 41, 43 (1973).
  The Board in this case appears to launch a new approach
with no discernable parameters. If employers were free to
exercise economic penalties selectively against those
employees whom they believe economic coercion would
be most effective, an employer could take discrimina-
tory actions that have traditionally been barred. Under
No. 05-1058                                                 15

the Board’s analysis, an employer could choose to lock
out only union leaders or only employees it believes
voted against a proposed contract. This type of discrim-
ination cannot be a legitimate and substantial business
justification for a partial lockout.
  Not only has Midwest failed to put forth a legitimate
and substantial business justification, but in its attempts to
justify the partial lockout it has given further support to the
Union’s claim that the lockout was used in a retributive
fashion to discourage employees from exercising their
section 7 right to strike.
 “[T]here is an obvious disparate treatment of employees,”
when an employer locks out
    only those employees who, by striking, had identified
    themselves as union adherents, while continuing to
    operate with those employees who had not joined the
    strike[.] . . . [B]y deliberately limiting the impact of the
    lockout to those employees who had struck, [an em-
    ployer] discriminate[s] against them for striking, and by
    such action violate[s] Section 8(a)(3) and (1) of the Act.
McGwier Co. v. NLRB, 204 N.L.R.B. 492, 496 (1973).
  In the context of collective bargaining negotiations, nearly
all employer actions are attempts to win an economic battle.
Merely because retribution against strikers may be effective
does not make such actions legitimate and substantial. The
fact that employers have acted with the “best judgment as
to the interests of their business . . . has not been deemed
an absolute defense to an unfair labor practice charge.”
NLRB v. Erie Resistor Corp., 373 U.S. 221, 229 n.8 (1963).
  Based on the record presented in this appeal, there is no
line that can be drawn between those employees that
agreed to return to work before August 31 and those
employees who agreed to return to their positions after
August 31. As of the time of the lockout, every employee
16                                               No. 05-1058

had made an unconditional offer to return to work. Without
a valid basis for distinction between those locked out and
those allowed to work, Midwest’s claim of a legitimate and
substantial business justification fails.


3. Midwest displayed anti-union animus.
   If Midwest’s claim of no anti-union animus were to
have any basis, it necessarily would contradict its ear-
lier claim of a legitimate and substantial business justifica-
tion. Either employees were locked out in a completely blind
fashion, thereby offering no legitimate and substantial
business justification, or they were chosen on the basis of
their Union activities and therefore the action was based
upon invalid anti-union motivations.
  By acting only against those who had exercised their
section 7 right to strike, Midwest appears to have demon-
strated an anti-union animus. The only distinction between
the two groups of employees at the time of the lockout was
their participation in Union activities. Discriminating in a
way that has a natural tendency to discourage participation
in concerted union activities is a violation of section 8(a)(3)
of the National Labor Relations Act. See Erie Resistor Corp.,
373 U.S. at 233; see also Radio Officers’ Union of Commer-
cial Telegraphers Union v. NLRB, 347 U.S. 17, 39-40 (1954).
As the dissent in this case succinctly stated, “The effect of
the lockout’s disparate treatment of employees is to under-
mine adherence to the Union by demonstrating to employ-
ees the advantages from the standpoint of job security of
refraining from concerted activity.” Midwest Generation,
343 N.L.R.B. No. 12, 7 (Sept. 30, 2004) (Walsh, dissenting)
(citing McGwier Co., 204 N.L.R.B. 492, 496 (1973); O’Daniel
Oldsmobile, Inc., 179 N.L.R.B. 398, 402 (1969)).
  The Board argued in its brief to this Court that employees
could have avoided “ ‘punishment’ by simply agreeing to the
Company’s bargaining demands.” Following this logic, a
No. 05-1058                                               17

partial lockout would be valid provided any offer, no matter
what the terms, was made to the employees. This approach
would permit inappropriate deference to employers’ intent
in partial lockout situations.
  A partial lockout is a significant measure that requires a
justification beyond economic effectiveness. The fact that
employees could avoid partial lockouts by agreeing to
employer demands would in effect validate all partial
lockouts. Undoubtably, this would render ineffective the
requirement of a legitimate and substantial business
justification for discriminatory employer action and would
be in derogation of nearly four decades of employee protec-
tion. See NLRB v. Great Dane Trailers, Inc., 388 U.S. 26
(1967); see also 29 U.S.C. §§ 157, 158(a)(1), (3).


                     III. Conclusion
  For the reasons set forth above, we REVERSE the find-
ings of the Board and REMAND to the Board with instruc-
tions to find that the partial lockout was an unfair labor
practice. We also REMAND to the Board to consider whether
this unfair labor practice coerced the Union and its mem-
bers into ratifying Midwest’s contract offer, thereby voiding
the collective bargaining agreement.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—10-31-05
