Even in the absence of a finding of specific illegal intent, and
notwithstanding the employer's claim that his action was necessary
to continue his operations during a strike, the National Labor
Relations Board was justified in finding that it was a violation of
§ 8(a) of the National Labor Relations Act for the employer to
discriminate between employees who struck and employees who worked
during a strike by awarding an additional seniority credit of 20
years to replacements for strikers, and also to strikers who
returned to work during the strike, so that, in a subsequent
layoff, strikers who did not return to work until after the strike
terminated were laid off as junior employees. Labor Board v.
Mackay Radio & Tel. Co., 304 U. S. 333
distinguished. Pp. 373 U. S.
303 F.2d 359, reversed and cause remanded.
MR. JUSTICE WHITE delivered the opinion of the Court.
The question before us is whether an employer commits an unfair
labor practice under § 8(a) [Footnote 1
] of the
Page 373 U. S. 222
National Labor Relations Act, 61 Stat. 136, 29 U.S.C. § 158,
when he extends a 20-year seniority credit to strike replacements
and strikers who leave the strike and return to work. The Court of
Appeals for the Third Circuit in this case joined the Ninth
Circuit, Labor Board v. Potlatch Forests, Inc.,
82 (and see Labor Board v. Lewin-Mathes Co.,
285 F.2d 329,
from the Seventh Circuit), to hold that such super-seniority awards
are not unlawful absent a showing of an illegal motive on the part
of the employer. 303 F.2d 359. The Sixth Circuit, Swarco, Inc.
v. Labor Board,
303 F.2d 668, and the National Labor Relations
Board are of the opinion that such conduct can be unlawful even
when the employer asserts that these additional benefits are
necessary to continue his operations during a strike. To resolve
these conflicting views upon an important question in the
administration of the National Labor Relations Act, we brought the
case here. 371 U.S. 810.
Erie Resistor Corporation and Local 613 of the International
Union of Electrical Radio and Machine Workers were bound by a
collective bargaining agreement which was due to expire on March
31, 1959. In January, 1959, both parties met to negotiate new
terms, but, after extensive bargaining, they were unable to reach
agreement. Upon expiration of the contract, the union, in support
of its contract demands, called a strike which was joined by all of
the 478 employees in the unit. [Footnote 2
The company, under intense competition and subject to insistent
demands from its customers to maintain deliveries,
Page 373 U. S. 223
decided to continue production operations. Transferring clerks,
engineers and other non-unit employees to production jobs, the
company managed to keep production at about 15% to 30% of normal
during the month of April. On May 3, however, the company notified
the union members that it intended to begin hiring replacements,
and that strikers would retain their jobs until replaced. The plant
was located in an area classified by the United States Department
of Labor as one of severe unemployment, and the company had, in
fact, received applications for employment as early as a week or
two after the strike began.
Replacements were told that they would not be laid off or
discharged at the end of the strike. To implement that assurance,
particularly in view of the 450 employees already laid off on March
31, the company notified the union that it intended to accord the
replacements some form of super-seniority. At regular bargaining
sessions between the company and union, the union made it clear
that, in its view, no matter what form the super-seniority plan
might take, it would necessarily work an illegal discrimination
against the strikers. As negotiations advanced on other issues, it
became evident that super-seniority was fast becoming the focal
point of disagreement. On May 28, the company informed the union
that it had decided to award 20 years' [Footnote 3
] additional seniority both to replacements and
to strikers who returned to work, which would be available only for
credit against future layoffs, and which could not be used for
other employee benefits based on years of service. The strikers at
a union meeting the next day, unanimously resolved to continue
striking, now in protest against the proposed plan as well.
Page 373 U. S. 224
The company made its first official announcement of the
super-seniority plan on June 10, and by June 14, 34 new employees,
47 employees recalled from layoff status, and 23 returning strikers
had accepted production jobs. The union, now under great pressure,
offered to give up some of its contract demands if the company
would abandon super-seniority or go to arbitration on the question,
but the company refused. In the following week, 64 strikers
returned to work and 21 replacements took jobs, bringing the total
to 102 replacements and recalled workers and 87 returned strikers.
When the number of returning strikers went up to 125 during the
following week, the union capitulated. A new labor agreement on the
remaining economic issues was executed on July 17, and an
accompanying settlement agreement was signed providing that the
company's replacement and job assurance policy should be resolved
by the National Labor Relations Board and the federal courts, but
was to remain in effect pending final disposition.
Following the strike's termination, the company reinstated those
strikers whose jobs had not been filled (all but 129 were returned
to their jobs). At about the same time, the union received some 173
resignations from membership. By September of 1959, the production
unit work force had reached a high of 442 employees, but, by May of
1960, the work force had gradually slipped back to 240. Many
employees laid off during this cutback period were reinstated
strikers whose seniority was insufficient to retain their jobs as a
consequence of the company's super-seniority policy.
The union filed a charge with the National Labor Relations Board
alleging that awarding super-seniority during the course of the
strike constituted an unfair labor practice, and that the
subsequent layoff of the recalled strikers pursuant to such a plan
was unlawful. The Trial Examiner found that the policy was
promulgated for legitimate
Page 373 U. S. 225
economic reasons, [Footnote
] not for illegal or discriminatory purposes, and recommended
that the union's complaint be dismissed. The Board could not agree
with the Trial Examiner's conclusion that specific evidence of
subjective intent to discriminate against the union was necessary
to finding that super-seniority granted during a strike is an
unfair labor practice. Its consistent view, the Board said, had
always been that super-seniority, in circumstances such as these,
was an unfair labor practice. The Board rejected the argument that
super-seniority granted during a strike is a legitimate corollary
of the employer's right of replacement under Labor Board v.
Mackay Radio & Tel. Co., 304 U. S. 333
detailed at some length the factors which to it indicated that
"super-seniority is a form of discrimination extending far
beyond the employer's right of replacement sanctioned by
and is, moreover, in direct conflict with the
express provisions of the Act prohibiting discrimination."
Having put aside Mackay,
the Board went on to deny
"that specific evidence of Respondent's discriminatory motivation
is required to establish the alleged violations of the Act,"
relying upon Radio Officers v. Labor Board, 347 U. S.
; Republic Aviation Corp. v. Labor Board,
324 U. S. 793
Teamsters Local v. Labor Board, 365 U.
. Moreover, in the Board's judgment, the
employer's insistence that its overriding purpose in granting
super-seniority was to keep its plant open and,
Page 373 U. S. 226
that business necessity justified its conduct was unacceptable,
"to excuse such conduct would greatly diminish, if not destroy,
the right to strike guaranteed by the Act, and would run directly
counter to the guarantees of Sections 8(a)(1) and (3) that
employees shall not be discriminated against for engaging in
protected concerted activities. [Footnote 5
Accordingly, the Board declined to make findings as to the
specific motivation of the plan or its business necessity in the
The Court of Appeals rejected as unsupportable the rationale of
the Board that a preferential seniority policy is illegal, however
"We are of the opinion that inherent in the right of an employer
to replace strikers during a strike is the concomitant right to
adopt a preferential seniority policy which will assure the
replacements some form of tenure, provided the policy is adopted
SOLELY to protect and continue the business of the employer. We
find nothing in the Act which proscribes such a policy. Whether the
policy adopted by the Company in the instant case was illegally
motivated we do not decide. The question is one of fact for
decision by the Board."
303 F.2d at 364. It consequently denied the Board's petition for
enforcement and remanded the case for further findings.
Page 373 U. S. 227
We think the Court of Appeals erred in hold that, in the absence
of a finding of specific illegal intent, a legitimate business
purpose is always a defense to an unfair labor practice charge.
Cases in this Court dealing with unfair labor practices have
recognized the relevance and importance of showing the employer's
intent or motive to discriminate or to interfere with union rights.
But specific evidence of such subjective intent is "not an
indispensable element of proof of violation." Radio Officers v.
Labor Board, 347 U. S. 17
347 U. S.
"Some conduct may, by its very nature, contain the implications
of the required intent; the natural foreseeable consequences of
certain action may warrant the inference. . . . The existence of
discrimination may at times be inferred by the Board, for 'it is
permissible to draw on experience in factual inquiries.'"
Teamsters Local v. Labor Board, 365 U.
, 365 U. S.
Though the intent necessary for an unfair labor practice may be
shown in different ways, proving it in one manner may have far
different weight and far different consequences than proving it in
another. When specific evidence of a subjective intent to
discriminate or to encourage or discourage union membership is
shown, and found, many otherwise innocent or ambiguous actions
which are normally incident to the conduct of a business may,
without more, be converted into unfair labor practices. Labor
Board v. Jones & Laughlin Steel Corp., 301 U. S.
, 301 U. S. 46
(discharging employees); Associated Press v. Labor Board,
301 U. S. 1
301 U. S. 132
(discharging employees); Phelps Dodge Corp. v. Labor
Board, 313 U. S. 177
(hiring employees). Compare Labor Board v. Brown-Dunkin
287 F.2d 17, with Labor Board v. Houston Chronicle
211 F.2d 848 (subcontracting union work);
and Fiss Corp.,
43 N.L.R.B. 125, with Jacob H.
13 N.L.R.B. 746 (movement of plant to another town).
Such proof itself is normally sufficient to destroy the
Page 373 U. S. 228
claim of a legitimate business purpose, if one is made, and
provides strong support to a finding that there is interference
with union rights or that union membership will be discouraged.
Conduct which, on its face, appears to serve legitimate business
ends in these cases is wholly impeached by the showing of an intent
to encroach upon protected rights. The employer's claim of
legitimacy is totally dispelled. [Footnote 6
The outcome may well be the same when intent is founded upon the
inherently discriminatory or destructive nature of the conduct
itself. The employer in such cases must be held to intend the very
consequences which foreseeably and inescapably flow from his
actions, and, if he fails to explain away, to justify or to
characterize his actions as something different than they appear on
their face, an unfair labor practice charge is made out. Radio
Officers v. Labor Board, supra.
But, as often happens, the
employer may counter by claiming that his actions were taken in the
pursuit of legitimate business ends, and that his dominant purpose
was not to discriminate or to invade union rights, but to
accomplish business objectives acceptable under the Act.
Nevertheless, his conduct does speak for itself -- it is
discriminatory, and it does discourage union membership, and,
whatever the claimed overriding justification may be, it carries
with it unavoidable consequences which the employer not only
foresaw, but which he must have intended. As is not uncommon in
human experience, such situations present a complex of motives and
preferring one motive to another
Page 373 U. S. 229
is, in reality, the far more delicate task, reflected in part in
decisions of this Court, [Footnote
] of weighing the interests of employees in concerted activity
against the interest of the employer in operating his business in a
particular manner and of balancing in the light of the Act and its
policy the intended consequences upon employee rights against the
business ends to be served by the employer's conduct. [Footnote 8
Page 373 U. S. 230
This essentially is the teaching of the Court's prior cases
dealing with this problem and, in our view, the Board did not
depart from it.
The Board made a detailed assessment of super-seniority and, it
its experienced eye, such a plan had the following
"(1) Super-seniority affects the tenure of all strikers, whereas
permanent replacement, proper under Mackay,
those who are, in actuality, replaced. It is one thing to say that
a striker is subject to loss of his job at the strike's end, but
quite another to hold that, in addition to the threat of
replacement, all strikers will, at best, return to their jobs with
seniority inferior to that of the replacements and of those who
left the strike."
"(2) A super-seniority award necessarily operates to the
detriment of those who participated in the strike as compared to
"(3) Super-seniority made available to striking bargaining unit
employees as well as to new employees is, in effect, offering
individual benefits to the strikers to induce them to abandon the
"(4) Extending the benefits of super-seniority to striking
bargaining unit employees as well as to new replacements deals a
crippling blow to the strike effort. At one stroke, those with low
seniority have the opportunity to obtain the job security which
ordinarily only long years of service can bring, while, conversely,
the accumulated seniority of older employees is seriously diluted.
This combination of threat and promise could be expected to
undermine the strikers' mutual interest and place
Page 373 U. S. 231
the entire strike effort in jeopardy. The history of this strike
and its virtual collapse following the announcement of the plan
emphasize the grave repercussions of super-seniority."
"(5) Super-seniority renders future bargaining difficult, if not
impossible, for the collective bargaining representative. Unlike
the replacement granted in Mackay,
which ceases to be an
issue once the strike is over, the plan here creates a cleavage in
the plant continuing long after the strike is ended. Employees are
henceforth divided into two camps: those who stayed with the union
and those who returned before the end of the strike, and thereby
gained extra seniority. This breach is reemphasized with each
subsequent layoff, and stands as an ever-present reminder of the
dangers connected with striking and with union activities in
In the light of this analysis, super-seniority, by its very
terms, operates to discriminate between strikers and nonstrikers,
both during and after a strike, and its destructive impact upon the
strike and union activity cannot be doubted. The origin of the
plan, as respondent insists, may have been to keep production
going, and it may have been necessary to offer super-seniority to
attract replacements and induce union members to leave the strike.
But if this is true, accomplishment of respondent's business
purpose inexorably was contingent upon attracting sufficient
replacements and strikers by offering preferential inducements to
those who worked, as opposed to those who struck. We think the
Board was entitled to treat this case as involving conduct which
carried its own indicia of intent, and which is barred by the Act
unless saved from illegality by an overriding business purpose
justifying the invasion of union rights. The Board concluded that
the business purpose asserted was insufficient to insulate
Page 373 U. S. 232
the super-seniority plan from the reach of § 8(a)(1) and §
8(a)(3), and we turn now to a review of that conclusion.
The Court of Appeals and respondent rely upon Mackay
precluding the result reached by the Board, but we are not
persuaded. Under the decision in that case, an employer may operate
his plant during a strike, and, at its conclusion, need not
discharge those who worked during the strike in order to make way
for returning strikers. It may be, as the Court of Appeals said,
that "such a replacement policy is obviously discriminatory, and
may tend to discourage union membership." But Mackay
not deal with super-seniority, with its effects upon all strikers,
whether replaced or not, or with its powerful impact upon a strike
itself. Because the employer's interest must be deemed to outweigh
the damage to concerted activities caused by permanently replacing
strikers does not mean it also outweighs the far greater
encroachment resulting from super-seniority in addition to
We have no intention of questioning the continuing vitality of
rule, but we are not prepared to extend it to
the situation we have here. To do so would require us to set aside
the Board's considered judgment that the Act and its underlying
policy require, in the present context, giving more weight to the
harm wrought by super-seniority than to the interest of the
employer in operating its plant during the strike by utilizing this
particular means of attracting replacements. We find nothing in the
Act or its legislative history to indicate that super-seniority is
necessarily an acceptable method of resisting the economic impact
of a strike, nor do we find anything inconsistent with the result
which the Board reached. On the contrary, these sources are wholly
consistent with, and lend full support to, the conclusion of the
Page 373 U. S. 233
Section 7 [Footnote 9
guarantees, and § 8(a)(1) protects from employer interference, the
rights of employees to engage in concerted activities, which, as
Congress as indicated, H.R.Rep. No. 245, 80th Cong., 1st Sess. 26,
include the right to strike. Under § 8(a)(3), it is unlawful for an
employer by discrimination in terms of employment to discourage
"membership in any labor organization," which includes discouraging
participation in concerted activities, Radio Officers v. Labor
Board, 347 U. S. 17
347 U. S. 39
such as a legitimate strike. Labor Board v. Wheeling Pipe Line,
229 F.2d 391; Republic Steel Corp. v. Labor
114 F.2d 820. Section 13 [Footnote 10
] makes clear that, although the strike weapon
is not an unqualified right, nothing in the Act except as
specifically provided is to be construed to interfere with this
means of redress, H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess. 59,
and § 2(3), [Footnote 11
preserves to strikers their unfilled positions and status as
employees during the pendency of a strike. S.Rep. No. 573, 74th
Cong., 1st Sess. 6. [Footnote
] This repeated solicitude for
Page 373 U. S. 234
the right to strike is predicated upon the conclusion that a
strike when legitimately employed is an economic weapon which in
great measure implements and supports the principles of the
collective bargaining system. [Footnote 13
While Congress has, from time to time, revamped and redirected
national labor policy, its concern for the integrity of the strike
weapon has remained constant. Thus, when Congress chose to qualify
the use of the strike, it did so by prescribing the limits and
conditions of the abridgment in exacting detail, e.g.,
8(b)(4), 8(d), by indicating the precise procedures to be followed
in effecting the interference, e.g.,
§ 10(j), (k), (l); §§
206-210, Labor Management Relations Act, and by preserving the
positive command of § 13 that the right to strike is to be given
Page 373 U. S. 235
generous interpretation within the scope of the labor Act. The
courts have likewise repeatedly recognized and effectuated the
strong interest of federal labor policy in the legitimate use of
the strike. Automobile Workers v. O'Brien, 339 U.
; Amalgamated Assn. of Elec. Ry. Employees v.
Wisconsin Employment Rel. Bd., 340 U.
; Labor Board v. Remington Rand, Inc.,
130 F.2d 919; Cusano v. Labor Board,
190 F.2d 898; cf.
Sinclair Ref. Co. v. Atkinson, 370 U.
Accordingly, in view of the deference paid the strike weapon by
the federal labor laws and the devastating consequences upon it
which the Board found was and would be precipitated by respondent's
inherently discriminatory super-seniority plan, we cannot say the
Page 373 U. S. 236
in the balance which it struck here. Although the Board's
decisions are by no means immune from attack in the courts, as
cases in this Court amply illustrate, e.g., Labor Board v.
Babcock & Wilcox Co., 351 U. S. 105
Labor Board v. United Steelworkers, 357 U.
; Labor Board v. Insurance Agents,
361 U. S. 477
findings here are supported by substantial evidence, Universal
Camera Corp. v. Labor Board, 340 U. S. 474
explication is not inadequate, irrational or arbitrary, compare
Phelps Dodge Corp. v. Labor Board, 313 U.
, 313 U. S.
-197; Labor Board v. United Steelworkers,
and it did not exceed its powers or venture into an
area barred by the statute. Compare Labor Board v. Insurance
The matter before the Board lay well within the
mainstream of its duties. It was attempting to deal with an issue
which Congress had placed in its hands, and "[w]here Congress has
in the statute given the Board a question to answer, the courts
will give respect to that answer." Labor Board v. Insurance
at 361 U. S. 499
Here, as in other cases, we must recognize the Board's special
function of applying the general provisions of the Act to the
complexities of industrial life. Republic Aviation Corp. v.
Labor Board, 324 U. S. 793
324 U. S. 798
Phelps Dodge Corp. v. Labor Board, supra,
at 313 U. S. 194
and of "[appraising] carefully the interests of both sides of any
labor-management controversy in the diverse circumstances of
particular cases" from its special understanding of "the
actualities of industrial relations." Labor Board v. United
at 357 U. S.
"The ultimate problem is the balancing of the conflicting
legitimate interests. The function of striking that balance to
effectuate national labor policy is often a difficult and delicate
responsibility, which the Congress committed primarily to the
National Labor Relations Board, subject to limited judicial
Labor Board v. Truck Drivers Union, 353 U. S.
, 353 U. S.
Consequently, because the Board's judgment was that the claimed
business purpose would not outweigh the
Page 373 U. S. 237
necessary harm to employee rights -- a judgment which we sustain
-- it could properly put aside evidence of respondent's motive and
decline to find whether the conduct was or was not prompted by the
claimed business purpose. We reverse the judgment of the Court of
Appeals, and remand the case to that court, since its review was a
limited one, and it must now reach the remaining questions before
it, including the propriety of the remedy which, at least in part,
turns upon the Board's construction of the settlement agreement as
being no barrier to an award not only of reinstatement but of back
pay as well. [Footnote
Reversed and remanded.
"Sec. 8(a). It shall be an unfair labor practice for an employer
"(1) to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 7;"
"* * * *"
"(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; . . ."
"* * * *"
"(5) to refuse to bargain collectively with the representatives
of his employees, subject to the provisions of section 9(a)."
In addition to these employees, 450 employees in the unit were
on layoff status.
The figure of 20 years was developed from a projection, on the
basis of expected orders, of what the company's work force would be
following the strike. As of March 31, the beginning of the strike,
a male employee needed seven years' seniority to avoid layoff, and
a female employee nine years'.
The Examiner had relied upon the company's employment records
for his conclusion that the replacement program was ineffective
until the announcement of the super-seniority awards. The General
Counsel, to show that such a plan was not necessary for that
purpose, pointed to the facts that the company had 300 unprocessed
job applications when the strike ended, that the company declared
to the union that it could have replaced all the strikers, and that
the company did not communicate its otherwise well publicized
policy to replacements before they were hired, but only after they
In addition, the Board held that continued insistence on this or
a similar proposal as a condition to negotiating an agreement
constituted a refusal to bargain in good faith under § 8(a)(5).
See Labor Board v. Wooster Division of Borg-Warner,
356 U. S. 342
The Board also concluded that, on May 29, when the union voted
to continue striking in protest against the super-seniority plan,
the strike was converted into an unfair labor practice strike. All
strikers not replaced at that date, the Board held, were entitled
to reinstatement as of the date of their unconditional abandonment
of the strike regardless of replacements. See Labor Board v.
Pecheur Lozenge Co.,
209 F.2d 393.
Accordingly, those cases holding unlawful a super-seniority plan
prompted by a desire on the part of the employer to penalize or
discriminate against striking employees, Ballas Egg Products v.
283 F.2d 871; Labor Board v. California Date
259 F.2d 587; Olin Mathieson Chem. Corp. v.
232 F.2d 158, aff'd per curiam,
1020, are explainable without reaching the considerations present
See, e.g., Labor Board v. Mackay Radio & Tel. Co.,
304 U. S. 333
Republic Aviation Corp. v. Labor Board, 324 U.
; Labor Board v. Babcock & Wilcox
Co., 351 U. S. 105
Labor Board v. Truck Drivers Union, 353 U. S.
In a variety of situations, the lower courts have dealt with and
rejected the approach urged here that conduct otherwise unlawful is
automatically excused upon a showing that it was motivated by
business exigencies. Thus, it has been held that an employer cannot
justify the discriminatory discharge of union members upon the
ground that such conduct is the only way to induce a rival union to
remove a picket line and permit the resumption of business,
Labor Board v. Star Publishing Co.,
97 F.2d 465, or
rearrange the bargaining unit because of an expected adverse effect
on production, Allis-Chalmers Mfg. Co. v. Labor Board,
F.2d 435, or defend a refusal to bargain in good faith on the
ground that, unless the employer's view prevails dire consequences
to the business will follow, Labor Board v. Harris,
F.2d 656, or refuse exclusive recognition to a union for fear that
such recognition will bring reprisals from rival unions.
McQuay-Norris Mfg. Co. v. Labor Board,
116 F.2d 748,
313 U.S. 565; Labor Board v. National
150 F.2d 895, or discriminate in his
business operations against employees of rival unions or without
union affiliation solely in order to keep peace in the plant and
avoid disruption of business, Wilson & Co., Inc. v. Labor
123 F.2d 411; Labor Board v. Hudson Motor Car
128 F.2d 528; Labor Board v. Gluek Brewing Co.,
144 F.2d 847; Labor Board v. Oertel Brewing Co.,
59; Labor Board v. McCatron,
216 F.2d 212, cert.
348 U.S. 943; Labor Board v. Richards,
F.2d 855. See also Idaho Potato Growers v. Labor Board,
144 F.2d 295; Cusano v. Labor Board,
190 F.2d 898;
Labor Board v. Industrial Cotton Mills,
208 F.2d 87, 45
A.L.R.2d 880, cert. denied,
347 U.S. 935. Indeed, many
employers doubtless could conscientiously assert that their unfair
labor practices were not malicious, but were prompted by their best
judgment as to the interests of their business. Such good faith
motive itself, however, has not been deemed an absolute defense to
an unfair labor practice charge.
"Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and shall also have the right to
refrain from any or all of such activities except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized in section 8(a)(3)."
"Nothing in this Act, except as specifically provided for
herein, shall be construed so as either to interfere with or impede
or diminish in any way the right to strike, or to affect the
limitations or qualifications on that right."
"The term 'employee' . . . shall include any individual whose
work has ceased as a consequence of, or in connection with, any
current labor dispute or because of any unfair labor practice, and
who has not obtained any other regular and substantially equivalent
employment. . . ."
This concern for the maintenance of the status prevailing before
the strike has had its most recent manifestation in the 1959
amendments to the National Labor Relations Act. Congress there
withdrew the ban inserted by the Taft-Hartley amendment
disqualifying replaced strikers from voting in union elections.
Now, employees not entitled to reinstatement can, under regulations
promulgated by the Board, exercise their pre-strike voting rights.
§ 9(c) (3); S.Rep. No. 187, 86th Cong., 1st Sess.
32-33, U.S.Code Congressional and Administrative News 1959, p.
"Labor unions . . . were organized out of the necessities of the
situation. A single employee was helpless in dealing with an
employer. He was dependent ordinarily on his daily wage for the
maintenance of himself and family. If the employer refused to pay
him the wages that he thought fair, he was nevertheless unable to
leave the employ and to resist arbitrary and unfair treatment.
Union was essential to give laborers opportunity to deal on
equality with their employer. They united to exert influence upon
him, and to leave him in a body in order, by this inconvenience, to
induce him to make better terms with them. They were withholding
their labor of economic value to make him pay what they thought it
was worth. The right to combine for such a lawful purpose has, in
many years, not been denied by any court. The strike became a
lawful instrument in a lawful economic struggle or competition
between employer and employees as to the share or division between
them of the joint product of labor and capital."
American Steel Foundries v. Tri-City Council,
257 U. S. 184
257 U. S. 209
quoted in Staff Report of Senate Committee on Education and Labor,
74th Cong., 1st Sess., Comparison of S. 2926 (73d Cong.) and S.
1958 (74th Cong.) 20. See also
Remarks of Senator Wagner
before Senate Committee on Education and Labor, 73d Cong., 2d
Sess., Hearings on S. 2926, 10-11:
"It has been urged that the bill places a premium on discord by
declaring that none of its provisions shall impair the right to
strike. On the contrary, nothing would do more to alienate employee
cooperation and to promote unrest than a law which did not make it
clear that employees could refrain from working if that should
become their only redress."
Remarks of Senator Taft, 93 Cong.Rec. 3835 (1947):
"That means that we recognize freedom to strike when the
question involved is the improvement of wages, hours, and working
conditions, when a contract has expired and neither side is bound
by a contract. We recognize that right in spite of the
inconvenience, and, in some cases, perhaps, danger, to the people
of the United States which may result from the exercise of such
right. . . . We have considered the question whether the right to
strike can be modified. I think it can be modified in cases which
do not involve the basic question of wages, prices, and working
conditions. . . . So far as the bill is concerned, we have
proceeded on the theory that there is a right to strike, and that
labor peace must be based on free collective bargaining. We have
done nothing to outlaw strikes for basic wages, hours, and working
conditions after proper opportunity for mediation."
"We do not agree with Respondent's contention that the Union, in
its strike settlement agreement of July 17, waived all rights for
these employees. The settlement agreement provided, inter
"The Company's replacement and job assurance policy to be
resolved by the NLRB and the Federal Courts and to remain in effect
pending final disposition."
"It is clear that this agreement was intended merely as an
interim settlement pending legal determination of the employees'
rights. In any event, we would not, in our discretion, honor a
private settlement which purported to deny to employees the rights
guaranteed them by the Act. Cf. Wooster Division of Borg-Warner
121 NLRB 1492, 1495."
Erie Resistor Corp.,
132 N.L.R.B. 621, 631 n. 31.
MR. JUSTICE HARLAN, concurring.
I agree with the Court that the Board's conclusions respecting
this 20-year "super-seniority" plan were justified without inquiry
into the respondents' motives. However, I do not think that the
same thing would necessarily be true in all
as for example with a plan providing for a much shorter period of
extra seniority. Being unsure whether the Court intends to hold
that the Board has power to outlaw all such plans, irrespective of
the employer's motives and other circumstances, or only to sustain
its action in the particular circumstances of this
concur in the judgment.