(2 of 3)
That said, Harlan then proceeded to reject Ervin's case. "A partial closing is an unfair labor practice," Harlan ruled, "if motivated by a purpose to chill unionism in any of the remaining plants of the single employer and if the employer may reasonably have foreseen that such closing will likely have that effect."
As for Darlington itself, Harlan ordered the NLRB to further probe "the purpose and effect" of the closing in relation to the combine's other workers. He left open for future review by the lower court the board's finding that Darlington was an integral part of Deering Milliken. Although this may yet bring the case back to the Supreme Court, the union joyously hailed the Darlington decision as a Waterloo for "large union-busting textile complexes in the South," which "can no longer play musical chairs with workers' lives and the welfare of textile communities."
Legal Lockouts. In two other cases, though, the court sharply rapped the NLRB for ruling that lockouts give employers "too much power." The court went far toward holding that lockouts are illegal only if designed for union busting—a point partly illustrated by the case of five retail grocers who bargained together against their clerks' union in Carlsbad, N. Mex.
To divide and conquer, the union had called a "whipsaw strike" against one store, hoping that loss of business would force it to come to terms that the other stores would then be forced to follow. Instead, all five stores locked out their clerks and stayed in business with temporary nonunion help. After seven weeks, the union gave up and signed a new contract.
According to the NLRB, the lockout would have been legal had the stores shut down. Disagreeing, the court said that the lockouts were legal because they were not "hostile" to the union; indeed the stores immediately rehired their union clerks after the strike. The lockouts were thus a legitimate "defensive measure to preserve the multiemployer group in the face of the whipsaw strike."
Fair's Fair. Equally business-saving rather than union-busting, said the court, was a lockout by American Ship Building Co., which depends for its income largely on repairs to Great Lakes ships laid up during the icebound winter. In the summer of 1961, after five strikes, the company reached an impasse with eight unions that demanded an extended contract expiring in midwinter, the height of the business season. In desperation, the company closed one yard and laid off workers in two others. By fall, the company had a two-year contract and has not been struck since.