National Labor Relations Board v. International Van Lines 895

• Decision Date: 07 November 1972
• Docket Number: No. 71,71
• Citation: 34 L.Ed.2d 201,93 S.Ct. 74,409 U.S. 48
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL VAN LINES. - 895
• Court: U.S. Supreme Court

409 U.S. 48

93 S.Ct. 74

34 L.Ed.2d 201

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v INTERNATIONAL VAN LINES.

No. 71 - 895.

Argued Oct. 12, 1972.

Decided Nov. 7, 1972.

Syllabus

Four employees of respondent refused to cross a picket line formed in connection with a union's organization campaign. Respondent thereafter advised the employees that because of their failure to report to work they were being permanently replaced, which was not true at the time of the discharges. When respondent refused reinstatement, charges were filed with the National Labor Relations Board (NLRB). Concluding that the discharges were unfair labor practices under the National Labor Relations Act, and that the employees thereby became unfair labor practice strikers, the NLRB ordered unconditional reinstatement with back pay. The Court of Appeals reversed that portion of the NLRB's order, holding that the employees were not unfair labor practice strikers, who were entitled to unconditional reinstatement, but economic strikers, who were not entitled to reinstatement if the employer had substantial business justifications for refusing to rehire them. Held: The unconditional reinstatement of the employees was proper since their discriminatory discharges prior to the time their places were filled constituted unfair labor practices regardless of whether they were economic strikers or unfair labor practice strikers. Pp. 52—53.

448 F.2d 905, reversed in part.

Peter G. Nash, Washington, D.C., for petitioner.

Norman H. Kirshman, Beverly Hills, Cal., for respondent.

Mr. Justice STEWART delivered the opinion of the Court.

The respondent is a moving and storage company based in Santa Maria, California. In August 1967, Local 381 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America began a campaign to organize the employees of moving and storage firms in the area. By September 21, five of the respondent's employees had signed upon authorization cards; it is undisputed that they constituted a clear majority of what would be an appropriate bargaining unit. Instead of demanding recognition by the respondent, the Union on September 21, 1967, petitioned the National Labor Relations Board for certification as the exclusive bargaining agent of the respondent's employees.

Shortly thereafter, on October 2 and 3, the Union held meetings where it was announced that the respondent had at first consented to a representation election but had later withdrawn its consent. It was decided at the October 3 meeting that all of the moving and storage companies involved in the Union organization campaign should be struck, and on October 4, picketing commenced at the respondent's place of business.

Four of the respondent's employees, Robert and Manuel Vasquez, Richard Dicus, and Salvador Casillas, were present at the respondent's premises on the morning when picketing commenced. They refused to cross the picket line. The next morning, Robert and Manuel Vasquez and Richard Dicus received identical tele- grams which read: 'For failure to report to work as directed at 7 A.M. on Wednesday Oct. 4, 1967 you are being permanently replaced. (Signed) International Van Lines.'¹ It is undisputed that at the time of the discharges, the respondent had not in fact hired permanent replacements.

Casillas sought reinstatement in late November, and the other three discharged employees made unconditional offers to return to work on December 12. At least as to these three,² the respondent refused reinstatement, claiming that it had at that point hired permanent replacements. The Union then went to the National Labor Relations Board with unfair labor practice charges against the respondent.

The Board determined that the labor picketing that commenced on October 4 was activity protected under § 7 of the National Labor Relations Act, 49 Stat. 452, as amended, 29 U.S.C. § 157, and concluded that the subsequent discharges of striking employees discriminated against lawful union activity and were unfair labor practices under §§ 8(a)(1) and 8(a)(3) of the Act, 29 U.S.C. §§ 158(a) (1), (a)(3).

It is settled that an employer may refuse to reinstate economic strikers if in the interim he has taken on permanent replacements. NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345—346, 58 S.Ct. 904, 910—911, 82 L.Ed. 1381. It is equally settled that employees striking in protest of an employer's unfair labor practices are entitled, absent some contractual or statutory provision to the contrary, to unconditional reinstatement with back pay, 'even if replacements for them have been made.' Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278, 76 S.Ct. 349, 355, 100 L.Ed. 309. Since the strike in the instant case continued after the unfair labor practices had been committed by the employer, the Board reasoned that the original economic strike became an unfair labor practice strike on October 5, when the three telegrams were sent. The Board held the four employees to be unfair labor practice strikers and, accordingly, ordered their unconditional reinstatement with back pay.

The Board then sought enforcement of its order in the Court of Appeals for the Ninth Circuit. The Court of Appeals agreed that the labor picketing was a lawful economic strike, and that the discharges of the striking employees were unfair labor practices. 448 F.2d 905, 910—911. Nevertheless, the Court of Appeals reversed the portion of the Board's order providing for reinstatement with back pay,³ reasoning as follows:

'The strikers whose discharges constituted the unfair labor practice were, at the time of their discharges, protesting only the original grievance. Any strikers subsequently discharged might legitimately be considered unfair labor practice strikers, for they would be protesting not only the original grievance but also the subsequent unfair labor practice. The initially discharged strikers were obviously not protesting their own discharges, which had not yet occurred. To assimilate their status to that of their co-workers who had not yet been discharged would eliminate the distinction between (the) economic-striker-reinstatement rule (Mackay Radio & Tele- graph) and the unfair-labor-practice-striker-reinstatement rule (Mastro Plastics) in cases like this one.' Id., at 911 912.

Consistent with its determination that the discharged employees were enconomic strikers entitled to reinstatement only if the employer could not show legitimate and substantial business justifications for refusing to take them back, the Court of Appeals remanded the case for further findings concerning the reasons for the employer's refusal to rehire them. Id., at 912. Because this decision appeared to involve principles important to the administration of the National Labor Relations Act as amended, we granted the Board's petition for certiorari, 405 U.S. 953, 92 S.Ct. 1177, 31 L.Ed.2d 230.

Both the Board and the Court of Appeals have agreed that the labor picketing was a lawful economic strike, and the validity of that conclusion is not before us.⁴ Given that hypothesis, the Board and the Court of Appeals...