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 National 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 bargaining 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 employees. 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 between September 1 and September 6. In all, a combination 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 officially 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 September 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 underlying 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 “comparatively 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 Boilermakers 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 destructive” 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 justification 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 substantial” 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 business 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

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 available 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.

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 proclaims 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 justification.

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.
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 operational 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 stoppages, 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 operations 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 shutdown of the construction crew’s operations was actually

necessitated by the exigencies of the business operation[.] . . . [O]perating on the basis of daily contract extensions 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 operational 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 nonstrikers. 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 bargaining 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 credulity.

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 “indispensable” 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 conduct as “necessary for business operations” does not establish strike-hiring practices that are difficult for employers

to comply with. Instead, it merely avoids creating a “business 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 contended 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 bargaining 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 explanation, 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-participation 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 individual 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 agreement 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 Generation, 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.” Midwest Generation, 343 N.L.R.B. No. 12, 5. While this statement 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 nonstrikers 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 employees 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 protected 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 discriminatory.

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 discriminatory 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 discrimination 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 employer] 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 earlier claim of a legitimate and substantial business justification. 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 demonstrated 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 Commercial 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 undermine adherence to the Union by demonstrating to employees 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 protection. 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 findings of the Board and REMAND to the Board with instructions 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 members 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