Respondent, employer, on the termination of a strike against it
by union members, announced that it could not then reinstate the
strikers because of production curtailment caused by the strike.
Respondent planned to resume full production as soon as possible.
Two days after the strike and on a number of subsequent occasions,
six strikers applied for reinstatement but were rejected on the
ground that no jobs were available. However, about two months after
the strike, respondent hired six new employees for jobs for which
the striker-applicants were qualified. The six striker-applicants,
who were not reinstated until about a month later, filed a
complaint with the National Labor Relations Board (NLRB) charging
unfair labor practices within the meaning of §§ 8(a)(1) and (3) of
the National Labor Relations Act because of interference with the
exercise of the rights to organize and to strike guaranteed by §§ 7
and 13. The Trial Examiner, after hearing, found that the job
openings filled by the new applicants could have been filled by the
striker-applicants and made recommendations, which the NLRB
adopted, that respondent should reimburse the six
striker-applicants for earnings losses attributable to respondent's
failure to reinstate them when it hired the six new employees. The
Court of Appeals denied the NLRB's enforcement petition, holding
that the strikers' right to jobs must be judged as of the date when
they first applied, when there were no jobs available.
Held:
1. Respondent's refusal to reinstate the strikers constituted an
unfair labor practice under the Act, since respondent did not show
that its action was due to "legitimate and substantial business
justifications."
NLRB v. Great Dane Trailer, 388 U. S.
26. Pp. 378-380.
2. The right of strikers to reinstatement does not depend upon
job availability when they first apply, but continues until they
have obtained "other regular and substantially equivalent
employment,"
Page 389 U. S. 376
§ 2(3), at least where, as here, their continued desire for
reinstatement is apparent. Pp. 380-381.
366 F.2d 126, vacated and remanded.
MR. JUSTICE FORTAS delivered the opinion of the Court.
Respondent is a manufacturer of mobile homes. On August 5, 1964,
it employed about 110 persons. On August 6, 1964, as a result of a
breakdown in collective bargaining negotiations between respondent
and the Union, [
Footnote 1]
about half of the employees struck. Respondent cut back its
production schedule from the pre-strike figure of 20 units to 10
units per week, and curtailed its orders for raw materials
correspondingly. On August 18, the Union accepted the respondent's
last contract offer, terminated the strike, and requested
reinstatement of the strikers.
Respondent explained that it could not reinstate the strikers
"right at that moment" because of the curtailment of production
caused by the strike. The evidence is undisputed that it was the
company's intention "at all times" to increase production to the
full pre-strike volume "as soon as possible." [
Footnote 2]
Page 389 U. S. 377
The six strikers involved in this case applied for reinstatement
on August 20 and on a number of occasions thereafter. On that date,
no jobs were available, and their applications were rejected.
However, between October 8 and 16, the company hired six new
employees, who had not previously worked for it, for jobs which the
striker-applicants were qualified to fill. Later, in the period
from November 2 through December 14, the six strikers were
reinstated.
An NLRB complaint was issued upon charges filed by the six
employees. As amended, the complaint charged respondent with unfair
labor practices within the meaning of §§ 8(a)(1) and (3) of the
National Labor Relations Act (61 Stat. 140, 29 U.S.C. §§ 158(a)(1)
and (3)) because of the hiring of new employees instead of the six
strikers. After hearing, the Trial Examiner concluded that
respondent had discriminated against the strikers by failing to
accord them their rights to reinstatement as employees in October
when respondent hired others to fill the available jobs.
Accordingly, the Examiner recommended that respondent should make
each of the six whole for loss of earnings due to its failure to
return them to employment at the time of the October hirings and
until they were reemployed. A three-member panel of the Board
adopted the findings, conclusions and recommendations of the Trial
Examiner. [
Footnote 3]
The Board filed a petition for enforcement of the order. The
Court of Appeals for the Ninth Circuit, one judge dissenting,
denied enforcement. 366 F.2d 126 (1966). It held that the right of
the strikers to jobs must be
Page 389 U. S. 378
judged as of the date when they apply for reinstatement. Since
the six strikers applied for reinstatement on August 20, and since
there were no jobs available on that date, the court concluded that
the respondent had not committed an unfair labor practice by
failing to employ them. We granted certiorari on petition of the
Board. 386 U.S. 990 (1967). We reverse.
Section 2(3) of the Act (61 Stat. 137, 29 U.S.C. § 152(3))
provides that an individual whose work has ceased as a consequence
of a labor dispute continues to be an employee if he has not
obtained regular and substantially equivalent employment. If, after
conclusion of the strike, the employer refuses to reinstate
striking employees, the effect is to discourage employees from
exercising their rights to organize and to strike guaranteed by §§
7 and 13 of the Act (61 Stat. 140 and 151, 29 U.S.C. §§ 157 and
163). Under §§ 8(a)(1) and (3) (29 U.S.C. §§ 158(1) and (3)), it is
an unfair labor practice to interfere with the exercise of these
rights. Accordingly, unless the employer who refuses to reinstate
strikers can show that his action was due to "legitimate and
substantial business justifications," he is guilty of an unfair
labor practice.
NLRB v. Great Dane Trailers, 388 U. S.
26,
388 U. S. 34
(1967). The burden of proving justification is on the employer.
Ibid. It is the primary responsibility of the Board and
not of the courts "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
388 U. S. 334.
See also NLRB v. Erie Resistor Corp., 373 U.
S. 221,
373 U. S.
228-229,
373 U. S.
235-236 (1963).
Universal Camera Corp. v. NLRB,
340 U. S. 474
(1951), is not an invitation to disregard this rule. [
Footnote 4]
Page 389 U. S. 379
In some situations, "legitimate and substantial business
justifications" for refusing to reinstate employees who engaged in
an economic strike have been recognized. One is when the jobs
claimed by the strikers are occupied by workers hired as permanent
replacements during the strike in order to continue operations.
NLRB v. Mackay Radio & Telegraph Co., 304 U.
S. 333,
304 U. S.
345-346 (1938);
NLRB v. Plastilite Corp., 375
F.2d 343 (C.A. 8th Cir.1967);
Brown & Root, 132
N.L.R.B. 486 (1961). [
Footnote
5] In the present case, respondent hired 21 replacements during
the strike, compared with about 55 strikers, and it is clear that
the jobs of the six strikers were available after the strike.
Indeed, they were filled by new employees. [
Footnote 6]
A second basis for justification is suggested by the Board --
when the striker's job has been eliminated for substantial and
bona fide reasons other than considerations relating to
labor relations: for example, "the need to adapt to changes in
business conditions or to improve efficiency." [
Footnote 7] We need not consider this claimed
justification, because, in the present case, no changes in methods
of production or operation were shown to have been
Page 389 U. S. 380
instituted which might have resulted in eliminating the
strikers' jobs.
The Court of Appeals emphasized in the present case the absence
of any anti-union motivation for the failure to reinstate the six
strikers. But in
NLRB v. Great Dane Trailers, supra, which
was decided after the Court of Appeals' opinion in the present
case, we held that proof of anti-union motivation is unnecessary
when the employer's conduct "could have adversely affected employee
rights to
some extent" and when the employer does not meet
his burden of establishing "that he was motivated by legitimate
objectives."
Id. at
388 U. S. 34.
Great Dane Trailers determined that payment of vacation
benefits to nonstrikers and denial of those payments to strikers
carried "a potential for adverse effect upon employee rights."
Because "no evidence of a proper motivation appeared in the
record," we agreed with the Board that the employer had committed
an unfair labor practice.
Id. at
388 U. S. 35. A
refusal to reinstate striking employees, which is involved in this
case, is clearly no less destructive of important employee rights
than a refusal to make vacation payments. And because the employer
here has not shown "legitimate and substantial business
justifications," the conduct constitutes an unfair labor practice
without reference to intent.
The Court of Appeals, however, held that the respondent did not
discriminate against the striking employee because, on the date
when they applied for work, two days after the end of the strike,
respondent had no need for their services. But it is undisputed
that the employees continued to make known their availability and
desire for reinstatement, and that, "at all times," respondent
intended to resume full production to reactivate the jobs and to
fill them.
It was clearly error to hold that the right of the strikers to
reinstatement expired on August 20, when they first
Page 389 U. S. 381
applied. This basic right to jobs cannot depend upon job
availability as of the moment when the applications are filed. The
right to reinstatement does not depend upon technicalities relating
to application. On the contrary, the status of the striker as an
employee continues until he has obtained "other regular and
substantially equivalent employment." (29 U.S.C. § 152(3).)
Frequently, a strike affects the level of production and the number
of jobs. It is entirely normal for striking employees to apply for
reinstatement immediately after the end of the strike and before
full production is resumed. If and when a job for which the striker
is qualified becomes available, he is entitled to an offer of
reinstatement. The right can be defeated only if the employer can
show "legitimate and substantial business justifications."
NLRB
v. Great Dane Trailers, supra.
Accordingly, the judgment of the Court of Appeals is vacated,
and the cause is remanded for further proceedings consistent with
this opinion. [
Footnote 8]
It is so ordered.
MR. JUSTICE MARSHALL took no part in the consideration or
decision of this case.
[
Footnote 1]
The Union is the San Bernardino-Riverside Counties District
Council of Carpenters, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO.
[
Footnote 2]
Respondent's production program was consistent with this
intention. During a period of about 18 weeks after the strike, the
number of units scheduled per week increased in a steady
progression from 10 to 12 to 14 to 16 to 18 to 19 and, finally, to
20 for the week ending December 13, 1964.
[
Footnote 3]
153 N.L.R.B. 425 (1965). "The Board is authorized to delegate to
any group of three or more members any or all of the powers which
it may itself exercise." Section 3(b), 61 Stat. 139, 29 U.S.C. §
153(b).
[
Footnote 4]
Although the decision of the Court of Appeals, as we read it,
resulted from its erroneous holding that the right of the strikers
to jobs depends upon the date of their (first) application for
reinstatement, it recited that the Board's General Counsel had
failed to show "that the jobs of complainants had not been absorbed
or that they were still available." Such proof is not essential to
establish an unfair labor practice. It relates to justification,
and the burden of such proof is on the employer.
NLRB v. Great
Dane Trailers, supra, at
388 U. S. 34.
Cf. also NLRB v. Plastilite Corp., 375 F.2d 343, 348 (C.A.
8th Cir.1967).
[
Footnote 5]
Unfair labor practice strikers are ordinarily entitled to
reinstatement even if the employer has hired permanent
replacements.
See Mastro Plastics Corp. v. NLRB,
350 U. S. 270,
350 U. S. 278
(1956).
[
Footnote 6]
The Trial Examiner found that
"the six job openings in October could have been filled by the
striker applicants and, had the Respondent considered them as
employees, rather than as mere applicants for hire, would have been
so filled."
[
Footnote 7]
Brief on behalf of NLRB 15.
[
Footnote 8]
The respondent contends that the Union agreed to a
nonpreferential hiring list, and thereby waived the rights of the
strikers to reinstatement ahead of the new applicants. The Board
found that the Union, having lost the strike, merely "bowed to the
[respondent's] decision." The Court of Appeals did not rule on this
point or on the effect, if any, that its resolution might have upon
the outcome of this case. Upon remand, the issue will be open for
such consideration as may be appropriate.
MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART joins, concurring
in the result.
The issue in this case seems to me rather simpler, and the
indicated resolution of it rather more obvious, than the majority
opinion implies. A striking worker remains
Page 389 U. S. 382
an "employee" at least as long as his job remains unfilled and
he has not found other equivalent work. [
Footnote 2/1] Consequently, as the Court of Appeals
stated in this case,
"If their jobs had not been filled or eliminated due to a
decrease in production, the strikers were entitled to be treated as
employees and to be given preference over other job
applicants."
366 F.2d at 128.
In the present case, full production was not resumed until two
months after the strikers indicated their willingness to return to
work. The only question is whether the six strikers here involved
were still at that point "employees" whom the employer had an
affirmative obligation to prefer. The Trial Examiner, whose
decision was affirmed by the Board, concluded that the strikers
were still employees because the employer had neither abolished nor
filled their jobs, but intended at all times to return to full
production "as soon as practicable." [
Footnote 2/2] The Court of Appeals found that the six
had lost their employee status because their jobs were unavailable,
by reason of a production cutback, at the precise and earlier
moment when they offered to return to work. Yet it seems palpably
inconsistent with the statutory purpose in preserving the employee
status of strikers to hold that the temporary production adjustment
occasioned by the strike itself is the equivalent of "permanent
replacement" or "job abolition" and destroys
Page 389 U. S. 383
the right of a striker to preference in rehiring. I would
reverse the Court of Appeals on the basis of the Trial Examiner's
conclusion that the employer's error was to see the strikers "only
as applicants for employment who were entitled to no more than
nondiscriminatory consideration for job openings. But they had a
different standing -- they were employees." 153 N.L.R.B. at 428.
The problems of "employer motivation" and "legitimate business
justification" are not, on this view, involved in this case at all.
The employer's obligation was not simply to be neutral between
strikers and nonstrikers, or between union and nonunion personnel,
an obligation that may give rise to questions concerning an
employer's reasons, good or bad, for making employment decisions.
This employer simply failed, for whatever reasons, to recognize the
status given the six strikers by the Act, and its corresponding
obligation to them. It did not assert in this Court any "legitimate
business justification" whatever for refusing to rehire the six
strikers in October; it claimed only that it did not need a reason.
Since this claim was simply wrong, no question of "motivation" or
"justification" need be reached here.
On this basis, I concur in the judgment of the Court.
[
Footnote 2/1]
Section 2(3) of the National Labor Relations Act, 61 Stat. 137,
29 U.S.C. § 152(3), reads in part as follows:
"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. . . ."
[
Footnote 2/2]
Nothing in the record suggests that the employer believed, or
had reason to believe, that the six employees' offers to return to
work had been revoked by October.