Abe Fortas

“ Great Dane Trailers determined that payment of vacation benefits to nonstrikers and denial of those payments to strikers carried 'a potential for adverse effect upon employee rights.' Because 'no evidence of a proper motivation appeared in the record,' we agreed with the Board that the employer had committed an unfair labor practice. Id., at 35, 87 S.Ct., at 1798. A refusal to reinstate striking employees, which is involved in this case, is clearly no less destructive of important employee rights than a refusal to make vacation payments. ”

“ It is the primary responsibility of the Board and not of the courts 'to strike the proper balance between the asserted business justifications and the invasion of employee rights in light of the Act and its policy.' Id., at 33-34, 87 S.Ct., at 1797. ”

“ A striking worker remains an 'employee' at least as long as his job remains unfilled and he has not found other equivalent work. [9] 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. ”