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Should congress outlaw use permanent replacements during s

The Sixth Circuit, Swarco, Inc. National Labor Relations Board, 303 F. To resolve these conflicting views upon an important question in the administration of the National Labor Relations Act, we brought the case here. 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.

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 should congress outlaw use permanent replacements during s 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' 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. 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.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ERIE RESISTOR CORPORATION et al.

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 cut back 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 economic reasons, 4 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 should congress outlaw use permanent replacements during s, 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 National Labor Relations Board v. National Labor Relations Board, 347 U. National Labor Relations Board, 324 U. National Labor Relations 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 that business necessity justified its conduct was unacceptable since '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.

The Court of Appeals rejected as unsupportable the rationale of the Board that a preferential seniority policy is illegal however motivated. We find nothing in the Act which proscribes such a policy.

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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. It consequently denied the Board's petition for enforcement and remanded the case for further findings. 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. 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.

National Labor Relations Board v. National Labor Relations Board, 301 U. National Labor Relations Board, 313 U. Compare National Labor Relations Board v. Houston Chronicle Publishing Co. Such proof itself is normally sufficient to destroy the employer's 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. 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.

National Labor Relations 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.

As is not uncommon in human experience, such situations present a complex should congress outlaw use permanent replacements during s motives and preferring one motive to another is in reality the far more delicate task, reflected in part in decisions of this Court, 7 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.

The Board made a detailed assessment of super-seniority and, it its experienced eye, such a plan had the following characteristics: 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.

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.

  1. 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.
  2. Houston Chronicle Publishing Co. By most definitions, outlaws are figures that the authorities view as criminals, but who are viewed as heroes by other people — particularly people outside of power.
  3. When they expose their bodies at the Super Bowl, our reactions — the extent to which we freak out — tell us something about the current boundaries between proper and improper public conduct. Just imagine, as sociologist Emile Durkheim did, a society of saints made up of exemplary citizens.
  4. Following the strike's termination, the company reinstated those strikers whose jobs had not been filled all but 129 were returned to their jobs. Does society need outlaws?
  5. As negotiations advanced on other issues, it became evident that super-seniority was fast becoming the focal point of disagreement.

This combination of threat and promise could be expected to undermine the strikers' mutual interest and place 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.

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.

  1. They continue to appear wherever political, cultural, and economic conflicts tear the fabric of society.
  2. National Labor Relations Board, supra.
  3. Criminality is necessary but not sufficient for an outlaw group.
  4. It consequently denied the Board's petition for enforcement and remanded the case for further findings. 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.

Employees are henceforth divided into two camps: 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 general. In the light of this analysis, super-seniority by its very terms operates to discriminate between strikers and non-strikers, 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 attact 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 Court of Appeals and respondent rely upon Mackay as 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. 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 permanent replacement.

We have no intention of questioning the continuing vitality of the Mackay 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 wholy consistent with, and lend full support to, the conclusion of the Board. Wheeling Pipe Line, Inc. National Labor Relations Board, 3 Cir. Section 13 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. Code Congressional Service 1947, p. 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.

The courts have likewise repeatedly recognized and effectuated the strong interest of federal labor policy in the legitimate use of the strike. Accordingly, in view of the deference paid the strike weapon by the federal labor laws and the devastating consequences upon it which the Board should congress outlaw use permanent replacements during s was and would be precipitated by respondent's inherently discriminatory super-seniority plan, we cannot say the Board erred 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. United Steelworkers, 357 U. Insurance Agents, 361 U. National Labor Relations Board, 340 U. United Steelworkers, supra, and it did not exceed its powers or venture into an area barred by the statute.

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 should congress outlaw use permanent replacements during s and ' w here Congress has in the statute given the Board a question to answer, the courts will give respect to that answer.

Insurance Agents, supra, 361 U. 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. National Labor Relations Board, supra, 313 U. United Steelworkers, supra, 357 U. 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 review.

Truck Drivers Local Union, 353 U. 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 should congress outlaw use permanent replacements during s as well. I agree with the Court that the Board's conclusions respecting this 20-year 'superseniority' plan were justified without inquiry into the respondents' motives.

However, I do not think that the same thing would necessarily be true in all circumstances, 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 case, I concur in the judgment.