Kurz-Kasch, Inc. v. N.L.R.B.
| Decision Date | 13 January 1989 |
| Docket Number | KURZ-KASC,88-5066,INC,Nos. 87-6354,s. 87-6354 |
| Citation | 865 F.2d 757 |
| Parties | 132 L.R.R.M. (BNA) 2893, 110 Lab.Cas. P 10,925 , Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner, United Electrical Radio and Machine Workers of America, Intervenor. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Frank H. Stewart (argued), Taft, Stettinius and Hollister, Timothy P. Reilly, Michael C. Lueder, Cincinnati, Ohio, for petitioner, cross-respondent.
Robin Alexander, Pittsburgh, Pa., for intervenor.
Aileen A. Armstrong, Deputy Associate Gen. Counsel, N.L.R.B., Peter Winkler, Scott MacDonald (argued), Washington, D.C., for respondent, cross-petitioner.
Before MERRITT, MARTIN and MILBURN, Circuit Judges.
Kurz-Kasch, Inc., the employer, appeals from the finding of an administrative law judge, upheld by the National Labor Relations Board, that it had failed to reinstate "economic" strikers (as distinguished from "unfair-labor-practice" strikers) in violation of sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1), (3). The N.L.R.B. cross-appeals for enforcement of its order. This dispute raises a narrow question under the Act: when do job "vacancies" arise after a strike to trigger the employer's legal duty to reinstate economic strikers? Because we conclude that the Board and the ALJ did not properly consider the employer's evidence that no "vacancies" existed, we decline enforcement and remand for reconsideration.
Twenty-three members of the United Electrical, Radio & Machine Workers of America went on strike at Kurz-Kasch on March 24, 1980 and returned to work on April 2, 1980. The ALJ determined that, during the strike, Kurz-Kasch hired thirty-one permanent replacements. The first eight of these replacements to leave merely brought Kurz-Kasch's workforce to its pre-strike size. But the ALJ held that, when twenty-six more replacements left Kurz-Kasch, their jobs became available to strikers awaiting reinstatement. Since only nine strikers were recalled, the ALJ ordered Kurz-Kasch to reinstate and make whole the remaining strikers.
Kurz-Kasch claims, however, that no jobs became available because it faced a downturn in business in the months after the strike and was forced to reduce the size of its workforce. It argues that its policy of accomplishing this goal by attrition rather than by layoffs does not alter the fact that no jobs existed for strikers to resume. It complains that the ALJ did not give adequate consideration to the evidence it advanced to support this explanation.
Both parties before us claim protection of important interests recognized as legitimate under the law. On behalf of the economic strikers the Board asserts the statutory right of workers to be free from employer action that illegally discourases union activity. 29 U.S.C. Sec. 158(a)(1), (3). Kurz-Kasch, on the other hand, claims its right to make a business judgment--the number of employees it needs and can afford to maintain--without governmental interference.
Such collisions are endemic to litigation under the NLRA. The Act itself clearly founds its strong policy favoring the right of employees to seek collective bargaining on a national need to prevent labor strife which in the past has become so violent as to disturb the peace and obstruct the free flow of commerce. 29 U.S.C. Sec. 151; see N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45, 57 S.Ct. 615, 628, 81 L.Ed. 893 (1937); Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 182, 61 S.Ct. 845, 846-47, 85 L.Ed. 1271 (1941); N.L.R.B. v. A. Duie Pyle, Inc., 730 F.2d 119, 126 (3rd Cir.1984). These strong public interests are advanced by the Act's creation of specific organizational rights, which the Board and the Courts have been charged to protect from unfair infringement by employers hostile to their exercise. 29 U.S.C. Sec. 157 (section 7); Golden State Bottling Co. v. N.L.R.B., 414 U.S. 168, 185, 94 S.Ct. 414, 425-26, 38 L.Ed.2d 388 (1973). The Act has never been construed, however, to attack the right of employers to protect their legitimate interests. "Protection of the workers' right to self-organization does not curtail the appropriate sphere of managerial freedom...." Phelps Dodge, 313 U.S. at 182, 61 S.Ct. at 846-47. We may take Justice Frankfurter's summation of the problem as a guide:
The act does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them. The employer may not, under cover of that right, intimidate or coerce its employees with respect to their self-organization and representation, and, on the other hand, the Board is not entitled to make its authority a pretext for interference with the right of discharge when that right is exercised for other reasons than such intimidation and coercion.
Jones & Laughlin Steel Corp., 301 U.S. at 45-6, 57 S.Ct. at 628.
Where it is not certain whether an employer's action or failure to act falls within the sphere of the employee's or the employer's legally protected interests, the Board must adopt a mode of inquiry into the facts that respects the interests and policies involved. In construing the NLRA, the Supreme Court has said, "[t]he ultimate problem is the balancing of the conflicting legitimate interests." N.L.R.B. v. Truck Drivers Local Union No. 449, 353 U.S. 87, 96, 77 S.Ct. 643, 648, 1 L.Ed.2d 676 (1957).
The balance struck by the Supreme Court in this area has several levels. It is undisputed that economic strikers remain employees even though their posts may have been filled during the strike by permanent replacements. N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345, 58 S.Ct. 904, 910, 82 L.Ed. 1381 (1938). Unlike unfair-labor-practice strikers, who have the right to resume work at their pre-strike jobs the moment the strike ends, under the balance struck by the Supreme Court workers striking to strengthen their position at the bargaining table may be replaced by permanent replacements but retain the right to reinstatement in their jobs as soon as those jobs become available. This rule carefully accommodates the interests of workers, who Congress has determined must not be discouraged from exercising their rights under the Act, N.L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 378, 88 S.Ct. 543, 545-46, 19 L.Ed.2d 614 (1967), with a countervailing policy protecting the viability of American businesses when they are free from illegal conduct. When an employer fails to reinstate economic strikers, a similar balance must be struck. The Supreme Court has determined what that balance is:
[U]nless 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. (Citation omitted.) The burden of proving justification is on the employer.
Fleetwood Trailer, 389 U.S. at 378, 88 S.Ct. at 546 (quoting N.L.R.B. v. Great Dane Trailers, 388 U.S. 26, 34, 87 S.Ct. 1792, 1798, 18 L.Ed.2d 1027 (1967)).
In drawing this rule, the Supreme Court gave special attention to the requirement of section 8(a)(3) that only "discrimination ... to ... discourage" union activity be prohibited. The statute's implicit requirement that employers refrain from acting with antiunion motive does not result in a requirement that employees come to the Board with solid proof of the employer's motivations. Instead, the Court set a complex rule that carefully balances the equities involved here. Recognizing that some acts are so " 'inherently destructive' of important employee rights" that they are virtually per se unfair labor practices, the Court held that, even if an employer can show that it was otherwise motivated, the Board can find that an unfair labor practice took place. Even where the insult to employee rights is "comparatively slight," and the actual motivations of the employers are determinative, the Court was alert to the fact that employers, not employees, had ready access to evidence of employer motivation. In such cases, proof of antiunion animus is required only after the employer has successfully borne its burden of proving a substantial and legitimate business justification for its acts. Great Dane Trailers, 388 U.S. at 33-4, 87 S.Ct. at 1797.
With this explanation of our understanding of the policies and burdens of proof defined by the Supreme Court concerning the filling of "vacancies" created after economic strikes, we come to the narrow question posed by this controversy. A prima facie case of a violation is made when it is shown that the employer failed to make an offer of reinstatement "when a job for which the striker is qualified [became] available...." Fleetwood Trailer, 389 U.S. at 381, 88 S.Ct. at 547. But when is it permissible to conclude that a job has become "available"? We are called upon here to minimize two dangers: first, the danger that the Board might order an employer to maintain a workforce larger than is justified by its genuine economic needs; and second, the danger that an employer--silently and without intimating its real purpose--will postpone reinstating economic strikers until they have found legally equivalent work elsewhere or otherwise lost interest in their old jobs. Further, we must respect, as the Supreme Court has done, the fact that the employer has full and free access...
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