recognizing right of employer to replace economic strikers
How later courts described this case
- recognizing right of employer to replace economic strikers
- hiring of new employees at a time when there are outstanding applications for reinstatement from strikers is presumptively a violation of the Act, regardless of intent, unless the employer demonstrates a "legitimate and substantial business reason" for not hiring the strikers
- unjustified refusal to reinstate strikers at end of economic strike is unfair labor practice because it discourages excercise of right to strike
- Court holds that “the status of the striker as an employee continues until he has obtained ‘other regular and substantially equivalent employment’ ”
Written by the judges who cited it.
The opinion
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 *382 an “employee” at least as long as his job remains unfilled and he has not found other equivalent work. 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.” 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 de *383 stroys 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 non-strikers, 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.
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 . . . .”
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.