Retail, Wholesale And Department Store Union v. National Labor Relations Board

466 F.2d 380 (D.C. Cir. 1972)


Board (D) had announced a policy that if an employer replaced a striking worker, then it could treat a striking worker as a new applicant for employment which meant it need not actually rehire them or offer them full accrued rights. Union (P) went on strike. Company decided to continue operations with employees who chose not to strike and new employees hired to replace the strikers. Company decided to continue operations with employees who chose not to strike and new employees hired to replace the strikers. During the course of the strike, the Company eliminated all of its electric eye bottle inspecting machines and abolished eleven sales helper jobs. P maintains that not submitting these decisions to the collective bargaining process constituted an unfair labor practice converting what was admittedly an economic strike into an unfair labor practice strike. Some of the strikers began distributing 'Health Warning' leaflets in the community, implying that, because of the inexperienced replacements at the plant, Coca-Cola bottles might be unclean and a hazard to health. The Company claims that this leafleting was not protected activity under the Act and that the Company was, therefore, justified in subsequently refusing to offer reinstatement to any strikers who personally engaged in it. The strike ended, and P requested reinstatement for all striking employees. The Company notified the Union that 12 of the strikers had been offered reinstatement, but that all other strikers had been permanently replaced or had had their jobs abolished. Bargaining continued after the strike until February 22, 1967. During that time, 242 job vacancies occurred in the normal turnover of personnel. Although aware that a substantial number of former strikers desired reinstatement, the Company never attempted to fill these vacancies by actively seeking out and offering positions to any of the unreinstated strikers, but instead filled them with other applicants obtained through newspaper advertisements and private employment services. The Company informed P that any of its members who came down to the plant and applied for work would be given 'due consideration.' On February 22, 1967, the Company announced that it would no longer bargain with the Union because it did not believe that the Union continued to represent a majority of the employees. The Board filed a complaint against the Company charging a number of unfair labor practices. The Board ordered the Company to cease and desist from engaging in unfair labor practices under a new standard announced in Laidlaw, which had been decided after the acts in question in this case. The Board further ordered the Company to make whole the ten strikers whose reinstatement was unduly delayed, and to offer immediate reinstatement to the unreinstated strikers and to make them whole for the Company's failure to offer them jobs as they became available, discharging if necessary any employees hired instead. The Board now seeks enforcement of its order.