Byron White

“ We think the Court of Appeals erred in hold that, in the absence of a finding of specific illegal intent, a legitimate business purpose is always a defense to an unfair labor practice charge. Cases in this Court dealing with unfair labor practices have recognized the relevance and importance of showing the employer's intent or motive to discriminate or to interfere with union rights. ”

“ Super-seniority affects the tenure of all strikers whereas permanent replacement, proper under Mackay, affects only those who are, in actuality, replaced. It is one thing to say that a striker is subject to loss of his job at the strike's end but quite another to hold that in addition to the threat of replacement, all strikers will at best return to their jobs with seniority inferior to that of the replacements and of those who left the strike. ”

“ Super-seniority renders future bargaining difficult, if not impossible, for the collective bargaining representative. Unlike the replacement granted in Mackay which ceases to be an issue once the strike is over, the plan here creates a cleavage in the plant continuing long after the strike is ended. Employees are henceforth divided into two camps: those who stayed with the union and those who returned before the end of the strike and thereby gained extra seniority. ”

“ The right to combine for such a lawful purpose has in many years not been denied by any court. The strike became a lawful instrument in a lawful economic struggle or competition between employer and employees as to the share or division between them of the joint product of labor and capital.'↑ 'We do not agree with Respondent's contention that the Union in its strike settlement agreement of July 17 waived all rights for these employees. ”

“ In the light of this analysis, super-seniority by its very terms operates to discriminate between strikers and non-strikers, both during and after a strike, and its destructive impact upon the strike and union activity cannot be doubted. The origin of the plan, as respondent insists, may have been to keep production going and it may have been necessary to offer super-seniority to attact replacements and induce union members to leave the strike. ”

“ Congress there withdrew the ban inserted by the Taft-Hartley amendment disqualifying replaced strikers from voting in union elections. Now, employees not entitled to reinstatement can, under regulations promulgated by the Board, exercise their pre-strike voting rights. See § 9 (c) (3) ; S.Rep. No. 187, 86th Cong., 1st Sess. 32-33, U.S.Code Congressional and Administrative News 1959, p. 2318.↑ 'Labor unions * * * were organized out of the necessities of the situation. A single employee was helpless in dealing with an employer. ”

“ It shall be an unfair labor practice for an employer-↑ In addition to these employees, 450 employees in the unit were on layoff status.↑ The figure of 20 years was developed from a projection, on the basis of expected orders, of what the company's work force would be following the strike. ”

“ As of March 31, the beginning of the strike, a male employee needed seven years' seniority to avoid layoff and a female employee nine years'.↑ The Examiner had relied upon the company's employment records for his conclusion that the replacement program was ineffective until the announcement of the super-seniority awards. ”