No. 8 6 - 4 2
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
MISSOULA COUNTY HIGH SCHOOL
DISTRICT,
Petitioner and Respondent,
BOARD OF PERSONNEL APPEALS OF
THE STATE OF MONTANA, and
MISSOULA COUNTY HIGH SCHOOL
EDUCATION ASSOCIATION, MEA,
Respondents and Appellants.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hilley & Loring; Emilie Loring, Great Falls, Montana
Mary Anne Simpson, Bd. of Personnel Appeals, Helena,
Montana
For Respondent:
Worden, Thane & Haines; Molly Shepherd, Missoula,
Montana
Submitted on Briefs: May 30, 1 9 8 6
Decided: November 13, 1986
Filed: - :1986
* Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
The Montana Board of Personnel Appeals (the BPA) and
the Missoula County High School Education Association
(MCHSEA) appeal a Missoula County District Court order which
ruled that the Missoula County High School District (the
School District) did not commit an unfair labor practice in
violation of S 39-31-401, MCA. The District Court order
reversed a BPA decision that the School District violated
§ 39-31-401, MCA, by paying certain non-striking teachers for
eighteen days of work where those teachers had agreed to work
eighteen days but actually worked only one day. The issues
on appeal are whether the District Court erred by reversing;
(1) the BPA's conclusion of law that the School District's
conduct was not justified by a legitimate, substantial,
business necessity; (2) the BPA's conclusion of law that the
School District's action was inherently destructive of
protected labor rights; and (3) the BPA's finding of fact
that the non-striking teachers were not available and on-call
after June 4, 1981. We affirm.
MCHSEA is the recognized exclusive bargaining
representative of the School District's non-supervisory
certificated or licensed employees. On May 11, 1981, MCHSEA
went on strike against the School District. The School
District did not attempt to operate the Missoula schools
during the first week of the strike. On June 1, 1981, the
School District superintendent sent a letter to all members
of the bargaining unit. In pertinent part, that letter
stated:
The school district has just received
definite legal advice that our schools
must be open for 180 days in the 1980-81
school year or we will lose $1.275
million in state aid.
... A $1.275 million cut would
necessarily mean much larger class sizes,
reduced curricular and extra-curricular
offerings.
Schools must open June 4, 1981 if this
community is to maintain the quality of
our school program for next year ...
High schools will open on June 5th for
freshman, sophomore and junior classes
... A high school teachers should
notify their principal by 4:00 p.m. June
3, 1981 indicating a willingness to work
commencing with a PIR day at 8:00 a.m.
June 4, 1981 ...
Teachers returning June 4th to completion
of the school year shall receive for the
1980-81 school year an average 10.6%
increase as per the attached salary
schedule which includes increments and
horizontal changes. This payment will be
retroactive to August 27, 1980. All
fringe benefits including insurance for
June will be paid.
Twenty teachers notified the School District's
administration that they would return to work if the School
District attempted to operate. The School District opened
the Missoula schools on June 4, 1981. Three teachers who had
agreed to return did not do so because of either ill.ness or
family emergency. After the first day and with what is
described as good and sufficient reasons, the School
District's Board of Trustees determined it would be
inappropriate to continue the operation of the schoo1.s. The
School District made no further attempt to operate the
schools for the balance of the 1980-81 school year.
In April 1982, a Missoula attorney, representing one of
the teachers who returned to work, sent a letter to the
Missoula County High School Board of Trustees. The letter
stated that the School District superintendent's June 1
letter was an offer of employment for a specific term; that
the School District did not reserve the right to terminate
the offer or any agreement arising therefrom; that, in the
attorney's opinion, a contractual relationship existed
between the School District and the teacher for employment
for a specific number of days commencing on June 4, 1981, and
ending on the 180th day of the 1980-81 school year; and that
the School District breached the agreement by refusing to pay
the teacher for work he was prepared to perform. In July
1982, the attorney sent another letter to the School District
on behalf of the same teacher. That letter again explained
the basis of the teacher's claim and stated that the teacher
was seriously contemplating legal action.
In September 1982, upon the advice of its attorney, the
School District paid the twenty returning teachers for the
remaining eighteen days they had agreed to teach. The School
District did not pay any of the striking teachers for this
period.
In October 1982, the MCHSEA filed an unfair labor
practice charge with the BPA alleging that the School
District had discriminated against those teachers who had
supported the strike. The union sought: (1) reimbursement of
all amounts deducted from the striking teachers' salaries
because of their participation in the strike, and (2)
corresponding contributions to the teachers' retirement
system. In June 1983, counsel for MCHSEA and counsel for the
School District agreed to a stipulation of facts which was
submitted to the BPA. In December 1983, a hearing officer
from the BPA issued his findings of fact, conclusion of law
and order ruling that the School District had committed
unfair labor practices violating S 39-31-401 (1) and (3), MCA.
Specifically, the hearing officer ruled that the School
District's conduct was inherently destructive of the public
employees' self-organizational rights; that there was no
substantial and legitimate business justification for the
School District's actions; and that the non-striking teachers
were not on-call during the seventeen days in question. The
School District filed exceptions to the hearing officer's
decision with the BPA. The full BPA held an oral argument on
this case in March 1984. In June 1984, the BPA issued its
final order adopting the hearing examiner's findings of fact
and conclusions of law. The BPA ordered the School District
to stop violating $ 39-31-401 (1) and (3), MCA, and fashioned
two alternative remedies to compensate the striking teachers.
In July 1984, the School District filed a petition for
judicial review and for declaratory judgment with the
Missoula County District Court. The BPA and the MCHSEA filed
answers and the District Court, sitting without a jury, heard
oral arguments in June 1985. In November 1985, the court
entered its findings of fact, conclusions of law and order.
The court made the following conclusions of law: in view of
the evidence, the BPA clearly erred in finding that the
teachers did not make themselves available and did not remain
on-call after June 4, 1981; the BPA abused its discretion and
committed an error of law by concluding that the School
District was under no obligation to pay the teachers for more
than one day of work; the BPA abused its discretion and
committed an error of law in concluding that the payment to
the teachers was inherently destructive of protected rights
and, therefore, no proof of anti-union motivation was
required; and that the BPA abused its discretion and
committed an error of law by concluding that the School
District's conduct was clearly prohibited under S 39-31-401,
MCA. This appeal followed.
Section 39-31-401, MCA, provides in part:
It is an unfair labor practice for a
public employer to:
(1) interfere with, restrain, or coerce
employees in the exercise of the rights
guaranteed in 39-31-201;
( 3 ) discriminate in regard to hire or
tenure of employment or any term or
condition of employment in order to
encourage or discourage membership in any
labor organization; however, nothing in
this chapter or in any other statute of
this state precludes a public employer
from making an agreement with an
exclusive representative to require, as a
condition of employment, that an employee
who is not or does not become a union
member, must have an amount equal to the
union initiation fee and monthly dues
deducted from his wages in the same
manner as checkoff of union dues; ...
Section 39-31-201, MCA, provides:
Public employees shall have and shall be
protected in the exercise of the right of
self-organization, to form, join, or
assist any labor organization, to bargain
collectively through representatives of
their own choosing on questions of wages,
hours, fringe benefits, and other
conditions of employment, and to engage
in other concerted activities for the
purpose of collective bargaining or other
mutual aid or protection free from
interference, restraint, or coercion.
These statutes are virtually identical to parts of the
federal National Labor Relations Act (NLRA), 29 U.S.C. § 157
and S 158. This Court and the BPA both look to National
Labor Relations Board and federal court interpretations of
the NLRA for guidance in interpreting the equivalent Montana
statutes. Teamsters, Etc. v. St. Ex Rel. Bd. of Personnel
(1981), 195 Mont. 272, 635 P.2d 1310; State v. Dist. Court of
Eleventh Jud. Dist. (1979), 183 Mont. 223, 598 ~ . 2 d 1117.
Where, as here, a district court reviews an agency
decision, the standard of review is set forth in the Montana
Administrative Procedure Act at § 2-4-704, MCA. The relevant
portions of that statute state:
(2) The court may not substitute its
judgment for that of the agency as to the
weight of the evidence on questions of
fact. The court may affirm the decision
of the agency or remand the case for
further proceedings. The court may
reverse or modify the decision if
substantial rights of the appellant have
been prejudiced because the
administrative findings, inferences,
conclusions, or decisions are:
(a) in violation of constitutional or
statutory provisions;
(b) in excess of the statutory authority
of the agency;
(c) made upon unlawful procedure;
(dl affected by other error of law;
(e) clearly erroneous in view of the
reliable, probative, and substantial
evidence on the whole record;
(f) arbitrary or capricious or
characterized by abuse of discretion or
clearly unwarranted exercise of
discretion; or
(g) because findings of fact, upon
issues essential to the decision, were
not made although requested.
Addressing the statute, this Court has stated:
[F]indings of fact by an agency have been
subject to a "clearly erroneous" standard
of review by the courts ...
Conclusions of law are subject to an
"abuse of discretion" review. These
standards differ due to the agency's
expertise regarding the facts involved
and the court's expertise in interpreting
and applying the law. (Citations
omitted.)
City of Billings v. Billings Firefighters (1982), 200 Mont.
The BPA held that the School District had violated
subsections (1) and (3) of 539-31-401, MCA. Under the
equivalent federal statutes (29 U.S.C. S 158(a) (1) and
(3)) ,any violation of subsection (3) necessarily includes a
derivative violation of subsection (1) . N.L.R.B. v. Swedish
Hospital Med. Center (9th Cir. 1980), 619 F.2d 33, 35.
Subsection (1) "was intended as a general definition of
employer unfair labor practices. Violations of it may be
either derivative, independent, or both." Fun striders, Inc.
v. N.L.R.B. (9th Cir. 1981), 686 F.2d 659, 661. In this
case, the BPA did not specify whether the subsection (1)
violation was derivative from the subsection (3) violation or
whether it was an independent violation. However, language
in the hearing examiner's opinion indicates that he
considered there to be an independent violation of
S 39-31-401(1), MCA. Thus, we proceed as if the BPA had
found an independent violation of subsection (1).
Section 39-31-401(3), MCA, makes it an unfair labor
practice for a public employer to "discriminate in regard to
hire or tenure of employment or any term or condition of
employment in order to encourage or discourage membership in
any labor organization . .." Addressing the federal
counterpart to this section, the United States Supreme Court
stated:
[Tlhe intention was to forbid only those
acts that are motivated by an anti-union
animus ...
But an employer may take
actions in the course of a labor dispute
that present a complex of
motives ...
and it is often difficult
to identify the true motive.
In these situations the Court has divided
an employer ' s conduct into two
classes ... Some conduct is SO
" ' inherently destructive of employee
interests'" that it carries with it a
strong inference of impermissible motive
.. .
employer
In such a situation, even if an
comes forward with a
nondiscriminatory explanation for its
actions, the Board "may nevertheless draw
an inference of improper motive from the
conduct itself and exercise its duty to
strike the proper balance between the
asserted business justifications and the
invasion of employee rights in light of
the Act and its policy." ...
On the
other hand, if the adverse effect of the
discriminatory conduct on employee rights
is "'comparatively slight,' an antiunion
motivation must he proved to sustain the
charge - the employer has come forward
if
with evidence of legitimate and
substantial business justifications for
the conduct." (Citations omitted.)
~etropolitan Edison Co. V. NLRB (1983)t 460 U - S - 693,
700-701, 103 S.Ct. 1467, 1473, 75 L.Ed.2d 387, 396. In this
case, the BPA found that the School District had no
substantial, legitimate business justification for making the
payments to the teachers and that the payments were
inherently destructive of the striking teachers' union
interests. Thus, the BPA found a violation of
5 39-31-401 (3), MCA.
The first issue is whether the District Court erred by
reversing the BPA's conclusion of law that the School
District had no legitimate business justification for making
the payments. We first note that although the BPA and the
hearinq examiner characterized this conclusion as a finding
of fact, it is more properly seen as a conclusion of law.
Thus, that conclusion is subject to the "abuse of discretion"
standard of review.
The stipulated facts show that the payment was made
only after an attorney for one of the teachers threatened
legal action. Two letters from that attorney are attached as
exhibits to the stipulated facts. The attorney asserted that
the superintendent's letter was an offer of employment for a
specific number of days; i.e. from June 4th to the completion
of the 180th day of the school year. The attorney charged
that the teacher was prepared to perform for the term of the
contract and that the School District breached the agreement
by refusing to pay him for the work he was prepared to
perform. At the hearing before the full Board of Personnel
Appeals, board members discussed and considered a letter from
the School District's superintendent. Although that letter
was not part of the stipulated facts, no objection was made
to consideration of that letter and it is properly part of
the record before this Court. See S 39-31-409 (3), MCA. The
superintendent's letter shows (1) that an attorney advised
the School District that the teacher's claim was valid and
(2) that the School District decided not to litigate the
claim because of the increased cost to do so. The letter
expressed concern that if the School District was
unsuccessful in contesting the claim, the court would order
the School District to pay the teacher's attorney's fees
which would increase the loss by 30-40%. The hearing
examiner disagreed with the School District and found that
there was no obligation to pay the teachers except for the
one day they worked. Thus, the hearing examiner and the BPA
concluded there was no business justification for paying the
claim. We agree with the District Court that that conclusion
was an abuse of discretion.
We need not decide for the purposes of this opinion
whether the School District or the BPA correctly determined
the legitimacy of the teacher's claim.
The legitimacy of the [School District's!
conduct for purposes of the analysis
prescribed by Great Dane depends not on
the truth of its assertions regarding its
contractual obligations but rather on the
reasonableness and bona fides with which
it held its beliefs.
The First Circuit's decision in NLRB v.
Borden, Inc., Borden Chemical Division,
600 F.2d 313 (1st Cir. 19791, is
persuasive in this regard. In BO-rden,
the employer withheld accrued vacation
pay because of the employees' strike
activity until after the contractual
vacation period had expired. The Board
rejected the employer's assertion that it
was acting pursuant to a contractual
obligation, i.e., "employees shall not be
paid vacation pay in lieu of vacation,"
and concluded that the denial of vacation
benefits was inherently destructive of
the employees' rights. The First Circuit
remanded the case, declaring:
"Borden did come forward with evidence of
a business justification for its conduct,
namely, the terms of the collective
bargaining agreement and past practice.
The Board found this reason invalid
because its interpretation of the
contract differed from that of Borden's.
This, however, - - - question of
is not a
contract interpretation. The Board : -
-
d
a
h
duty to determine whether Borden was
motivated & its reliance on -
-
the
collective bargaining agreementor %
anti-union animus - -it withhelr 7
when the
accrued vacation benefits. We cautlon
the Board - -it is neither - function
that - our
- - Board's to second-guess business
nor the
decisions. " ~ h e y c t
was not intended to
guarantee that business decisions be
sound, only that they not be the product
of antiunion motivation" (Emphasis in
original.) (Citations omitted.)
Vesuvius Crucible Co. v. N.L.R.B. (3rd. Cir. 1981) , 668 F. 2d
162, 167. See also Stokely-Van Camp, Inc. v. N . L . R . B . (7th
Cir. 1983), 722 F.2d 1324.
In Vesuvius, the employer, interpreting a collecti~re
bargaining agreement, refused to pay allegedly accrued
vacation benefits to any employee, striking or nonstriking.
The NLRB found that this interpretation of the collective
bargaining agreement was incorrect, that the employees' right
to the benefits had accrued, and that the employer committed
unfair labor practices in refusing to pay. The Third Circuit
reversed finding the company's interpretation reasonable and
arguably correct. The Vesuvius court found that the NLFR
overstepped its authority in formulating j.ts own
interpretation of the contract.
The instant case is similar to Borden and Vesuvius.
Here, the hearing examiner disagreed with the School
District's interpretation of the contract but he did not
address the reasonableness of that interpretation. We find
that the School District made a reasonable interpretation of
the contract and paid the claim out of a bona fide belief
that the claim was valid. The School District paid the claim
only after the teacher threatened to file suit to collect.
Moreover, the School District's attorney advised the School
District that this was a legal claim which should be paid.
Finally, we find that the School District's interpretation of
the contract was arguably correct. Therefore, we affirm the
District Cou.rtlsreversal of the BPA's conclusion that the
School District had no substantial, legitimate business
justification for the payment.
The second issue is whether the lower court properly
reversed the BPA's conclusion that the School District's
action was inherently destructive of protected labor rights.
Inherently destructive conduct, in this context, is conduct
which carries with it, ". . . unavoidable consequences which
the employer not only foresaw but which he must have
intended" and thus bears ''its own indicia of intent."
(Citation omitted.) N.L.R.B. v. Great Dane Trailers (1967),
388 U.S. 26, 33, 87 S.Ct. 1792, 1797, 18 L.Ed.2d 1027, 1034.
The Ninth Circuit Court of Appeals describes those cases
finding inherently destructive conduct as:
[C]ases involving conduct with far
reaching effects which would hinder
future bargaining, or conduct which
discriminates solely upon the basis of
participation in strikes or union
activity. Examples of inherently
destructive activity are permanent
discharge for participation in union
activities, granting of superseniority to
strike breakers, and other actions
creating visible and continuing obstacles
to the future exercise of employee
rights. (Citation omitted.)
Portland 1Vil.lamette Co. v. N.L.R.B. (9th ~ i r .1976), 534 ~ . 2 d
1331, 1334. The Portland Willamette Co. court declined to
find inherently destructive conduct in an employer's
proposal, during a strike, to grant a retroactive pay
increase to workers who had returned to, and remained at,
work by a certain date.
General Electric Co. (1948), 49 NLRB 510, 23 LRRM 1094,
supports a conclusion that there was no inherently
destructive conduct in this case. In General Electric the
employees engaged in a strike and the employer, upon the
strike's termination, paid full wages for the entire strike
period to those employees who had indicated a willingness to
work during the strike. Although the compensated employees
actually did no work during the strike, the NLRB found that
those workers were "on call" and available for work. The
NLRB found no unlawful disparity of treatment in paying full
wages to those workers for the strike period.
In this case, the BPA found that the teachers were not
on-call and did not make themselves available for work after
the first day. The District Court ruled that this finding
was clearly erroneous. The propriety of this ruling is the
third issue on appeal. The facts support an inference that
the teachers did make themselves available to work the entire
period in question. The superintendent's letter soliciting
teachers (the offer) clearly contemplated that the teachers
would work until the completion of 180 school days, i.e., for
eighteen more days. By showing up for work the first day,
the teachers accepted the offer and implicitly agreed to
work, and make themselves available, for eighteen days.
The BPA found that the School District discriminated
against the strikers solely on the basis of union activity.
We disagree. The School District discriminated in favor of
the non-strikers because they took the affirmative step of
agreeing to teach for eighteen days and forego other options
for those days. Moreover, the payments were made more than a
year after the strike and only after the threat of a lawsuit.
The School District's conduct arose out of a unique situation
and is not the equivalent of permanently discharging strikers
or granting superseniority to non-strikers. The inherently
destructive label simply does not fit this conduct.
Therefore, we uphold the District Court's reversal of the BPA
on this point.
We concede that the School District's conduct may have
had a comparatively slight impact on employee rights.
Teachers may hesitate slightly in joining future strikes. To
find a violation of $ 39-31-401 (3), MCA, where the
discriminatory conduct has comparatively slight effect, "[Aln
antiunion motivation must be proved to sustain the charge -
if
[as here] the employer has come forward with evidence of
legitimate and substantial business justifications for the
conduct. 'I Metropolitan Edison Co., 460 U.S. The BPA
concedes, and the record shows, that there is - evidence
no
that the School District acted with an anti-union motive.
Therefore, we hold that there was no violation of
Finally, we address the issue of whether there was an
independent, as opposed to derivative, violation of
§ 39-31-401 (I), MCA.
Such a violation is established. by
showing:
(1) that employees are engaged in
protected activities, (citation omitted) ;
(2) that the employer's conduct tends to
"interfere with, restrain, or coerce
employees" in those activities, (citation
omitted) ; and
(3) that the employer's conduct is not
justified by a legitimate and substantial
business reason, (citation omitted) .
Fun Striders, Inc., 686 F.2d at 661-662. We held above that
the employer's conduct was justified by a legitimate and
substantial business reason. Therefore, there can be no
independent violation of S 3 9 - 3 1 - 4 0 1 ( 1 ) , MCA.
The District Court properly reversed the BPA order
finding unfair labor practices.
Affirmed .
I
We concur: A
ief Justice
Just i%,
es =9
-
urt sitting
stice John
Mr. Justice William E. Hunt, Sr., dissenting:
I dissent. I would uphold the BPA decision that the
School District violated $ 39-31-401, MCA, by paying the
non-striking teachers for eighteen days of work where those
teachers actually worked only one day. The facts as set out
by the majority refer to the letter sent to all teachers by
the School District, however the majority opinion does not
set out that letter in full. There is one key sentence
omitted. That sentence is the last sentence of the letter
which reads:
"Teachers who do not report for duty by 8:00 a.m. on
June 4, 1981 will be replaced."
This sentence is the crux of that letter, as is shown by the
fact that the School Board refers to this letter in the
minutes of its meetings as the "replacement letter." The
letter further states, "Teachers returning June 4th to
completion - - school year shall receive
of the . . . an average
10.6% increase . . .." Twenty teachers told the District's
agents that they would return on June 4. Seventeen actually
worked June 4th, two of the teachers had a family emergency
and one was sick. On the evening of June 4 the School
District decided to close Missoula county high schools
through Friday, June 5. On Sunday, June 7 the Board decided
to close the schools for the remainder of the 1980-81
academic year.
The first issue raised on appeal, is whether
the District Court erred in reversing the BPA's finding
of fact that non-striking teachers were not available
and on-call after June 4, 1981. The School District
urges that the payment for eighteen days
of work when only one was in fact worked was approved. in
General Electric Co. (1948), 80 MLRB 510, 23 LRRM 1094. In
General Electric, the employer paid employees who made their
services available and remained on-call in a standby
capacity. The employer refused to pay strikers. The NLRB
held that the payment to non-strikers who did not work was
not discriminatory because they remained subject to the
employer's call on a standby capacity which was compensable
as a matter of law. Thus the factual issue of whether the
returning teachers were on-call after June 4, 1981 becomes
crucial. The BPA held they were not because the school-s were
closed and the school year was over. I agree that the
returning teachers could not have remained on call for
seventeen days after the schools had closed for the academic
year, thus I would hold that General Electric has no
application to this case. The conduct of the School District
was to divide the work force into those who decided to go out
on strike and those who did not and to reward the latter
group.
The United States Supreme Court has set out the test to
determine if discriminatory conduct constitutes an unfair
labor practice in NLRB v. Great Dane Trailers, Inc. (19671,
388 U.S. 26, 34, 87 S.Ct. 1792, 1798, 18 L.Ed.2d 1027, 1035.
First, if it can reasonably be concluded that the
employer's discriminatory conduct was "inherently
destructive" of important employee rights, no proof
of an antiunion motivation is needed and the Board
can find an unfair labor practice even if the
employer introduces evidence that the conduct was
motivated by business considerations. Second, if
the adverse effect of the discriminatory conduct on
employee rights is "comparatively slight," an
antiunion motivation must be proved to sustain the
charge if the employer has come forward with
evidenceof legitimate and substantial business
justifications for the conduct. Thus, in either
situation, once it has been proved that the
employer engaged in discriminatory conduct which
could have adversely affected employee rights to
some extent, the burden is upon the employer to
establish that he was motivated by legitimate
objectives since proof of motivation is most
accessible to him. (Emphasis in original.)
The payment for seventeen days of unworked time is not
so insignificant that the teachers will not reflect before
participating in future strikes. The hearing examiner
estimated the cost to the District to be approximately
$40,000 or $2,000 per employee. There have been many
decisions that. have found unlawful interference with the
right to strike under similar circumstances. NLRB v. Great
Dane, supra (grant of vacation benefits to only nonstrikers
was an unfair labor practice); NLRB v. Erie Resistor Corp.
(1963), 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308 (grant of
super seniority to nonstrikers was an unfair labor practice);
George Banta Co., Inc., Banta Div. v. NLRB (D.C. Cir. 1982),
686 F.2d 10 - -
cert. den. (1983), 460 U.S. 1082, 103 S.Ct. 1770,
76 L.Ed. 2d 344 (grants of preferential reinstatement and
seniority rights to employees who abandoned a strike early
was an unfair labor practice.); Soule Glass and Glazing Co.
v. NLRB (1st. Cir. 1981) , 652 F. 2d 1055 (a 25C per hour wage
increase to employees working as of the first day of a strike
was an unfair labor practice.); NLRB v. Swedish Hospital
Medical Center (9th Cir. 1980), 619 F.2d 33 (granting a one
day vacation to non-strikers, those who returned early and
those hired during the strike was an unfair labor practice);
NLRB v. Rubatex Corp. (4th Cir. 1 . 9 7 9 ) , 601 F.2d 147 cert.
den.
- (1979), 444 U.S. 928, 100 S.Ct. 269, 62 L.Ed.2d 185
(bonuses of of $100 to $25 for those who worked during the
strike paid after the strike was over were an unfair labor
practice.) ; NLRB v. Frick Co., (3d Cir. 1968), 397 F.2d 956
(refusing vacation pay to strikers while paying non-strikers
was an unfair labor practice.); Aero-Motive Manufacturing Co.
(1972), 195 NLRB 790, 79 LRRM 1496, enf'd, (6th Cir. 1973),
475 F.2d 27, ($100. bonus to those who worked through a
strike, not awarded or announced until after the strike was
an unfair labor practice. ) . The Court in Aero-Motive stated
that by distinguishing "solely on the basis of who engaged in
protected, concerted activity and who did not." such
payments 'I. . . not only created a divisive wedge in the work
force, but also clearly demonstrated for the future the
special rewards which lie in store for employees who choose
to refrain from protected strike activity." Aero-Motive, 195
-- - --
--
NLRR at 792, 79 LRRM at 1498. J would adopt the rationale of
Aero-Motive and conclude that the conduct of the School
District was inherently destructive of the employees right to
strike. Further, the business justification advanced by the
School District does not constitute a legitimate substantial
business necessity. The District received two letters from
counsel for one of the teachers claiming he was due
compensation for eighteen days although the terms of the
agreement were, "to the completion of the school year" which
ended June 4th. Further, the business necessity advanced by
the School District does not explain why all twenty teachers
were paid for the remaining seventeen days, even though three
of those teachers did not work and were not paid for June
4th.
I would reverse the decision of the District Court and
affirm the decision of the BPF.
/'
Mr. Justice John C. Sheehy and Mr. Justice Frank B. orriso on
concur with the above dissent.