215 F.3d 11 (D.C. 2000)
Local 702, International Brotherhood of Electrical Workers, AFL-CIO, Petitionerv.National Labor Relations Board, RespondentCentral Illinois Public Service Company, IntervenorInternational Union of Operating Engineers, Local 148, AFL-CIO, Petitionerv.National Labor Relations Board, RespondentCentral Illinois Public Service Company, Intervenor
No. 99-1137, No. 99-1139
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 19, 2000Decided May 9, 2000

[Copyrighted Material Omitted]
On Petitions for Review of an Order of the National Labor Relations Board
Marilyn S. Teitelbaum argued the cause for the petitioners  in Nos. 99-1137 and 99-1139.  Stacey A. Meyers was on brief  for Local 702, International Brotherhood of Electrical Workers, AFL-CIO, the petitioner in No. 99-1137.
Cary Hammond and Greg A. Campbell were on brief for  petitioner International Union of Operating Engineers, Local  148, AFL-CIO in No. 99-1139.
Julie B. Broido, Attorney, National Labor Relations Board,  argued the cause for the respondent.  Linda Sher, Associate  General Counsel, Aileen A. Armstrong, Deputy Associate  General Counsel, and Margaret A. Gaines, Attorney, National Labor Relations Board were on brief for the respondent.  John D. Burgoyne, Deputy Associate General Counsel, National Labor Relations Board, entered an appearance.
Stuart I. Cohen and Robert S. Seigel were on brief for  intervenor Central Illinois Public Service Company in Nos.  99-1137 and 99-1139.
Jonathan P. Hiatt, Larry Engelstein, James B. Coppess,  Victoria L. Bor and Sue D. Gunter were on brief for amici  curiae American Federation of Labor-Congress of Industrial  Organizations, International Brotherhood of Electrical Workers and International Union of Operating Engineers in Nos.  99-1137 and 99-1139.
Robert E. Williams, Daniel V. Yager, Heather L. MacDougall, Jan S. Amundson, Quentin Riegel, Stephen A. Bokat  and Robin S. Conrad on brief for the amici curiae LPA, Inc.,  National Association of Manufacturers and the Chamber of  Commerce of the United States of America in Nos. 99-1137  and 99-1139.
Before:  Henderson, Randolph and Garland, Circuit  Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge:


1
Local 702 and  Local 148 of the International Brotherhood of Electrical  Workers, AFL-CIO (collectively Unions) challenge a decision  of the National Labor Relations Board (NLRB, Board) holding that the Central Illinois Public Service Company (CIPS)  did not commit an unfair labor practice when it locked out its  employees during contract negotiations.  CIPS, 326 N.L.R.B.  No. 89, 1998 WL 600788 (Aug. 27, 1988).  Reversing the  decision of the administrative law judge (ALJ), the Board  found that the lockout, implemented in response to the Unions' "inside game" tactics, was not "inherently destructive of  employee rights," was justified by legitimate business interests and was not motivated by anti-union animus.  Because  we conclude the Board's decision is in accord with the law and  supported by substantial evidence, we deny the Unions' petitions for review.

I.

2
In April 1992 CIPS, a public utility which generates and  distributes electricity and gas in Illinois, began negotiating  with each of the Unions over contracts to succeed those  expiring in June 1992.  When no agreement was reached by March 1993 CIPS submitted a "final" offer to each of the  Unions, which each voted to reject.  In lieu of striking, the  Unions decided to institute an "inside game" strategy under  which their members agreed to refuse to work voluntary  over-time and generally to "work-to-rule" (e.g., "adhering  strictly to all company safety and other rules;  doing exactly  and only what they were told;  reporting to work precisely on  time and parking work trucks at company facilities at day's  end (thus precluding employees from responding to after hours emergencies);  presenting all grievances as a group; advising non-employees to report unsafe conditions;  and advising customers of their right to various company information and of their right to have their meters checked annually  for accuracy," CIPS, slip op. at 1, 1998 WL 600788, at *1).The Unions began the inside game strategy on April 24, 1993  and continued to negotiate while carrying it out.  At 4:00 a.m.  on May 20, 1993 CIPS instituted a lockout of all members of  the two locals.  Negotiations continued during the lockout  and CIPS reached an agreement with Local 148 in June,  thereby ending the lockout of its members.  Local 148 nonetheless remained off the job in support of Local 702.  CIPS  ended the lockout of Local 702 on August 25, 1993, although  no contract agreement was reached until January 1994.


3
Each of the Unions filed unfair labor practice charges with  the NLRB, alleging violations of section 8(a)(1), (3) and (5) of  the National Labor Relations Act, 29 U.S.C.  158(a)(1), (3),  (5).  Following a hearing the ALJ judge issued a decision  dated May 20, 1996, which found that CIPS had violated all  three cited subsections.  In relevant part, the ALJ's decision  concluded that the work-to-rule campaign constituted protected activity for which the lockout was intended as punishment  in violation of section 8(a)(3).  In a 2-1 decision dated August  27, 1998 the Board reversed the ALJ on the section 8(a)(3)  lockout charge, concluding the lockout was instituted not out  of anti-union animus but with the dual "legitimate and substantial" business justifications of facilitating contract negotiations and of countering the economic effects of the inside  game strategy.  See CIPS, slip op. at 4-7, 1998 WL 600788, at  *6-10.

II.

4
The Unions challenge both the Board's interpretation of the  law and its factual findings.  "The courts accord a very high  degree of deference to administrative adjudications by the  NLRB."  United Steelworkers workers of America, 14534 v. NLRB, 983  F.2d 240, 244 (D.C. Cir. 1993).  "The Board has primary  responsibility for applying the general provisions of the [National Labor Relations Act], and where its interpretation of  what the Act requires is reasonable, in light of the purposes  of the Act and the controlling precedent of the Supreme  Court, courts should respect its policy choices."  United Food  & Commercial Workers Int'l Union v. NLRB, 880 F.2d 1422,  1428 (D.C. Cir. 1989) (citing Pattern Makers' League of N.  Am. v. NLRB, 473 U.S. 95 (1985);  Automobile Salesmen's  Union Local 1095 v. NLRB, 711 F.2d 383 (D.C. Cir. 1983))."[W]ith respect to questions of fact," "the findings of the  Board ... if supported by substantial evidence on the record  considered as a whole shall be conclusive."  29 U.S.C.   160(e).  "Where the Board has disagreed with the ALJ, as  occurred here, the standard of review with respect to the  substantiality of the evidence does not change."  United Food  & Commercial Workers v. NLRB, 768 F.2d 1463, 1469-70  (D.C. Cir. 1985) (citing Universal Camera Corp. v. NLRB,  340 U.S. 474, 496 (1951);  General Teamsters Local Union  No. 174 v. NLRB, 723 F.2d 966, 971 (D.C. Cir. 1983)).Nevertheless, "cases have made clear that '[t]he findings and  decision of the [ALJ] form an important part of the "record"  on which [the] judgment of substantiality is to be based,'  International Brotherhood of Teamsters, Local No. 310 v.  NLRB, 587 F.2d 1176, 1180 (D.C. Cir. 1978), and that the  Board, when it disagrees with the ALJ, 'must make clear the  basis of its disagreement ...' General Teamsters, supra, 723  F.2d at 971."  Id. at 1470 (alteration in original).  In the end,  however, "[s]ince the Board is the agency entrusted by Congress with the responsibility for making findings under the  statute, 'it is not precluded from reaching a result contrary to  that of the [ALJ] when there is substantial evidence in  support of each result,' " and " 'is free to substitute its  judgment for the [ALJ]'s.' "  Carpenters Local 33 v. NLRB, 873 F.2d 316, 319 (D.C. Cir. 1989) (quoting Sign & Pictorial  U., Local 1175 v. NLRB, 419 F.2d 726, 734 (D.C. Cir. 1969)  (alteration in original)).  Because we conclude the Board's  decision here was supported by substantial evidence and its  disagreement with the ALJ fully explained, we do not disturb  it.


5
Section 8(a)(3) of the National Labor Relations Act provides in relevant part:  "It shall be an unfair labor practice for  an employer ... (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.  158(a)(3).  In NLRB v. Great  Dane Trailers, 388 U.S. 26 (1967), the United States Supreme  Court construed its precedent to establish a comprehensive  framework for analyzing allegations of a section 8(a)(3) violation:


6
The statutory language 'discrimination * * * to * * *discourage' means that the finding of a violation normally turns on whether the discriminatory conduct was motivated by an antiunion purpose.  American Ship Building Co. v. National Labor Relations Board, 380 U.S. 300,85 S.Ct. 955 (1965).  It was upon the motivation element that the Court of Appeals based its decision not to grantenforcement, and it is to that element which we now turn. In three recent opinions we considered employermotivation in the context of asserted  8(a)(3) violations. American Ship Building Co. v. National Labor Relations Board, supra;  National Labor Relations Board v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965);and National Labor Relations Board v. Erie ResistorCorp., [373 U.S. 221, 227, 83 S.Ct. 1139, 1144-45, 10L.Ed.2d 308 (1963)].  We noted in Erie Resistor, supra,373 U.S. at 227, 83 S.Ct. at 1144, that proof of an antiunion motivation may make unlawful certain employ-er conduct which would in other circumstances be lawful. Some conduct, however, is so 'inherently destructive of employee interests' that it may be deemed proscribed without need for proof of an underlying improper motive. National Labor Relations Board v. Brown, supra, 380U.S., at 287, 85 S.Ct. at 986, American Ship Building Co.v. National Labor Relations Board, supra, 380 U.S. at311, 85 S.Ct. at 963.  That is, some conduct carries with it 'unavoidable consequences which the employer not only foresaw but which he must have intended' and thus bears 'its own indicia of intent.'  National Labor Relations Board v. Erie Resistor Corp., supra, at 228, 231, 83 S.Ct.at 1145-1147.  If the conduct in question falls within this 'inherently destructive' category, the employer has the burden of explaining away, justifying or characterizing 'his actions as something different than they appear on their face,' and if he fails, 'an unfair labor practice charge is made out.'  Id., at 228, 83 S.Ct. at 1145.  And even if the employer does come forward with counter explanations for his conduct in this situation, the Board maynevertheless draw an inference of improper motive from the conduct itself and exercise its duty to strike the proper balance between the asserted business justifications and the invasion of employee rights in light of the Act and its policy.  Id., at 229, 83 S.Ct. at 1145.  On the other hand, when 'the resulting harm to employee rights is * * * comparatively slight, and a substantial and legitimate business end is served, the employers' conduct is prima facie lawful,' and an affirmative showing of improper motivation must be made.  National Labor Relations Board v. Brown, supra, 380 U.S. at 289, 85S.Ct. at 987;  American Ship Building Co. v. National Labor Relations Board, supra, 380 U.S. at 311-313, 85S.Ct. at 963-964.


7
388 U.S. at 33-34.  Applying this framework, the Board found  that the CIPS lockout did not violate section 8(a)(3).


8
The Board first concluded that "the lockout in the instant  case, standing alone, cannot be considered inherently destructive of employee rights," based on the Supreme Court's  holding in American Ship Bldg. that "a lockout for the  purpose of applying pressure on a union during a bargaining  dispute is not 'one of those acts which are demonstrably so  destructive of collective bargaining that the Board need not  inquire into employer motivation.' "  CIPS, slip op. at 3, 1998  WL 600788, at *4 (quoting American Ship Bldg., 380 U.S. at  309);  see also slip op. at 3, 1998 WL 600788, at *4 (noting even in Brown, where employer took "additional step of  hiring temporary replacements after the lockout to continue  operations," Supreme Court "found that such conduct is not  inherently destructive of employee rights").  The Board  therefore determined "to treat [the lockout] as having a  'comparatively slight' impact on employee rights and apply  the second Great Dane test to determine the lockout's legality."  CIPS, slip op. at 4, 1998 WL 600788, at *5.  We agree  with the Board's analysis.  The Supreme Court made it clear  in American Ship Bldg., as the Board observed, that a  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."  380 U.S. at 312.1  Thus, the Board correctly concluded that under the Great Dane framework  the Board must inquire "whether the Respondent possessed a  legitimate and substantial business justification for the lockout."  CIPS, slip op. at 4, 1998 WL 600788, at *5.  The Board  reasonably found that CIPS had two such justifications.


9
The first objective the Board attributed to CIPS was "to  force the Unions to cease their inside game activities."  CIPS,  slip op. at 4, 1998 WL 600788, at *5.  Noting that the strike  that prompted the lockout in Brown was "also an economic  bargaining weapon in support of contract demands and no  less protected than the inside game that the judge found was  protected in this case," the Board concluded that the lockout  was a legitimate defense against the Unions' "inside game  weapon" deployed as part of "economic warfare in the midst  of bargaining negotiations with the hope of securing agreement on their terms for new contracts."  CIPS, slip op. at 4,  1998 WL 600788, at *5.  Applying the standard of review set  forth above, we find the Board's conclusion--that CIPS's  defensive use of the lockout here against the Unions' inside  game was as justified as the lockout in Brown aimed at the  employees' economic strike--to be "reasonable, in light of the  purposes of the Act and the controlling precedent of the  Supreme Court," United Food, 880 F.2d at 1428.  Accordingly, we defer to the Board's policy choice.  Id.


10
We also agree that the second business objective the Board  identified--"resolution of issues that were dividing the parties  in their bargaining negotiations," CIPS, slip op. at 4, 1998 WL  600788, at *6--was a legitimate one and supported by the  evidence.  The Board found as a fact that in implementing  the lockout CIPS "sought resolution of issues that were  dividing the parties in their bargaining negotiations," CIPS,  slip op. at 4, 1998 WL 600788, at *6, based on the text of  letters CIPS's chief executive officer sent the members of  each of the Unions on May 20, 1993, the day the lockout  began.  The bulk of each letter outlined the contract concessions CIPS made in its final offer and the chronology of negotiations, culminating in the inside game.  In addition, the  letter to Local 702 members stressed that union negotiators  had continually rejected CIPS's urging to place its offers  before the membership and was accompanied by an analysis  of the differences between the previous contract and CIPS's  final offer of a new one.2  The letters to Local 148 explained  the Company's position on the one apparent sticking point in  negotiations (the transfer of six union positions to management).  Each letter closed with the following language:


11
Like you, I am anxious to bring these issues to a successful conclusion and have you back at your jobs at the earliest possible date.  I sincerely regret the disruption this decision will bring into your lives. My hope is that this aspect of our labor dispute is short-lived.


12
App. 632-33, 644-48.  Given their focus and tenor (concentrating on the course and substance of negotiations and  CIPS's eagerness to resolve the contract dispute), we conclude the letters constitute substantial evidence in support of  the Board's finding "that a purpose of the lockout was to  affect the outcome of negotiations between the Respondent  and the Unions."  CIPS, slip op. at 5, 1998 WL 600788, at *7.We therefore uphold the Board's consequent determination  "that application of economic pressure in support of this  bargaining position constitutes a legitimate and substantial  business justification for the lockout within the meaning of  Great Dane."  CIPS, slip op. at 5, 1998 WL 600788, at *7.


13
Finally, having found two substantial and legitimate business objectives, the Board undertook the third inquiry of the  Great Dane framework:  asking whether the Unions had  made an "affirmative showing of improper motivation," such  as through "evidence indicating that the lockout was intended  to 'discourage union membership' or that was [sic] used 'in  the service of designs inimical to the process of collective  bargaining.' "  CIPS, slip op. at 6, 1998 WL 600788, at *9  (quoting American Ship Bldg., 380 U.S. at 308, 312-313).  The Board reasonably found "that 'not only is there absent in  [sic] the record any independent evidence of improper motive,  but the record contains positive evidence of the [Respondent's] good faith.' "  CIPS, slip op. at 7, 1998 WL 600788, at  *10 (quoting Brown, 380 U.S. at 290).  As examples of such  evidence, the Board pointed to CIPS's long and stable bargaining relationship with the Unions and its lengthy, good  faith attempts to reach a contract here, including its clearly  expressed desire in the May 20, 1993 letter to resolve differences and resume business as usual as soon as possible.  We  conclude the Board's historic and continuing good faith dealing with the Union, combined with the absence of affirmative  evidence showing anti-union animus, sufficiently supports the  Board's finding here.


14
Despite the Board's faithful adherence to Great Dane and  its predecessors and specific factual findings, the Unions  challenge the Board's decision on two grounds:  (1) precedent  precludes the Board's finding that CIPS's use of the lockout  as an economic defense to the Unions' economic inside game  weapon was in furtherance of a permissible business interest  and (2) the finding of no anti-union animus on CIPS's part is  belied by the record.  We find neither argument a basis for  overturning the Board's determination.


15
First, the Unions contend the Board's acceptance of the  economic defense justification is contrary to Supreme Court  precedent which, the Unions maintain, requires finding the  lockout unlawful because it was intended to curtail "protected" activity, namely the inside game tactics.  As the Board  correctly observed, however, that activity may be protected  does not insulate it from counteraction by an employer. CIPS, slip op. at 4, 1998 WL 600788, at *5 (noting:  "To hold  that it is not a legitimate business justification for the Respondent to defend against this weapon with a lockout in  order to force the Unions to yield, ignores the Court's observation in American Ship that the 'right to bargain collectively  does not entail any "right" to insist on one's position free  from economic disadvantage.' ") (quoting 380 U.S. at 309);  see  Machinists v. Wisconsin Employment Relations Comm'n,  427 U.S. 132, 152-53 (1976) ("[E]ven were the activity presented in the instant case 'protected' activity within the  meaning of  7, economic weapons were available to counter  the Union's refusal to work overtime, e.g., a lockout....")  (citing American Ship Bldg.) (footnote omitted).  The strikes  in both American Ship Bldg. and Brown, as the Board noted,  were also protected activities--yet the employers' responsive  lockouts in those cases were upheld by the Supreme Court. We see no reason to treat differently the lockout here which  was implemented in response to the inside game strategy that  the Unions adopted as an alternative to a strike.


16
We also believe the Board's endorsement of the economic  defense justification is, contrary to the Unions' insistence,  consistent with its own precedent.  The Unions rely most  heavily here on the Board's decisions in Riverside Cement  Co., 296 N.L.R.B. 840 (1989), Thrift Drug Co, 204 N.L.R.B. 41  (1973), and Carlson Roofing, 245 N.L.R.B. 13 (1979).  The  Board reasonably distinguished Riverside on the ground that  the action taken there was not in furtherance of "lawful  bargaining" but was an attempt to implement "a unilateral  change in the employees' contractual terms of employment"  by requiring employees to furnish specific personal tools  which, under their collective bargaining agreement, they were  expressly exempted from furnishing.  CIPS, slip op. at 6-7  n.20, 1998 WL 600788, at *15 n.20.  Any worker who did not  provide his own tools was locked out.  In finding a section  8(a)(3) violation, the Riverside Board stressed that the "denial  of work was limited to only those employees who engaged in  action they were entitled to take under the contract" and  therefore "was not a lawful lockout," which is "generally  permissible in anticipation of a strike or in support of an  employer's legitimate bargaining position."  296 N.L.R.B. at  841.  Similarly, in Thrift Drug Co., the Board found a section  8(a)(3) violation where the employer suspended a single picketing employee solely on the ground the employee "was  unlawfully selected for suspension because of her activities on  behalf of the Union."  204 N.L.R.B. at 41.  In contrast to  Riverside and Thrift Drug, the lockout here was directed  unit-wide, not to specific employees engaged in specific acts. Finally, Carlson Roofing is inapposite because the Board's finding that the lockout there violated section 8(a)(3) was  overturned on review by the Seventh Circuit.  See Carlson  Roofing Co. v. NLRB, 627 F.2d 77, 82 (7th Cir. 1980).


17
The Unions also argue that the Board ignored the ALJ's  credibility determinations and findings regarding the true  motive behind the lockout.  The Board, however, expressly  accepted the ALJ's finding that the lockout was implemented  "in reprisal" for the inside game, ALJ Decision at 22, 1998  WL 600788, at *35, CIPS, slip op. at 2, 1998 WL 600788, at  *2, but then found the motive was "not ... impermissible,"  CIPS, slip op. at 4, 1998 WL 600788, at *5.  The ALJ based  his motive finding on statements by company management  that it would have "preferred" and been "better off with" a  strike or lockout than with the inside game strategy, under  which unit employees "were getting the best of both worlds"  by "putting pressure on the Company while still getting their  paycheck for the daytime work."  ALJ Dec. at 65 [App. 848].Neither this testimony nor the finding itself is at odds with  the Board's finding that CIPS implemented the lockout as an  economic response to the inside game, which CIPS viewed as  economically injurious.  The Board's principal factual dispute  with the ALJ was on how to construe the text of the May 20,  1993 letters and the Board decision sufficiently explains its  differing, and we believe more defensible, interpretation of  the letters' language.  See Mathews Readymix, Inc. v.  NLRB, 165 F.3d 74, 77 (D.C. Cir. 1999) ("Board's findings of  fact are conclusive if supported by substantial evidence,"  provided it "make clear the basis of its disagreement" when  reversing ALJ) (citing Avecor, Inc. v. NLRB, 931 F.2d 924,  928 (D.C. Cir. 1991);  United Food & Commercial Workers  Int'l Union, Local 152 v. NLRB, 768 F.2d 1463, 1470 (D.C.  Cir. 1985)).


18
Finally, Local 128 challenges the Board's finding that its  members were locked out in order to obtain a contract on the  ground that agreement on a contract with Local 128 (as  distinct from Local 702) was imminent.  We accept the  Board's finding as supported by the facts.  The record establishes that Local 128 acted in unison with Local 207 in  planning and implementing the inside game and that, even after CIPS terminated the lockout of Local 128, its members  stayed away from work in support of Local 702 (as they might  well have done ab initio if CIPS had not locked them out).  It  was therefore not unreasonable for CIPS and the Board to  treat the two locals as a single bargaining force.  In fact,  given the unified actions of the two locals, lockout of only one  might well have suggested unlawful discrimination under the  Board's decisions in Riverside and Thrift Drug.  See supra p.  19.


19
For the preceding reasons, the Unions' petitions for review  are


20
Denied.



Notes:


1
 Local 702 contends the Board was required to "analyz[e] the  specific facts in this case," in order to make the "inherently  destructive" determination.  See Local 702 Brief at 39-44.  The  Supreme Court decisions indicate, however, that an across-the board lockout "as a means to bring economic pressure to bear in  support of the employer's bargaining position," 380 U.S. at 308, is  categorically not "inherently destructive."  See American Ship  Bldg., 380 U.S. at 310-12 ("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....  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....  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.");Brown, 380 U.S. at 284. ("[W]e do not see how the continued  operations of respondents and their use of temporary replacements  imply hostile motivation any more than the lockout itself;  nor do we  see how they are inherently more destructive of employee rights.").Thus, the "specific facts" come into play only in the subsequent  inquiries whether the particular lockout has a legitimate business  justification and whether it was motivated by anti-union animus.


2
 According to the ALJ, a similar analysis was included with the  letters to Local 148 members, CIPS, ALJ Dec. 23 [App. 806], but it  does not appear in the appendix filed with the court.


