## Facts

- A collective bargaining agreement between Erie Resistor Corporation and the union expired on March 31, 1959; negotiations for a new agreement failed.
- The union began an economic strike, and all 478 bargaining-unit employees joined.
- Erie continued operations at reduced levels and later announced it would hire permanent replacements, stating strikers would keep their jobs only “until replaced.”
- On June 5, 1959, Erie adopted a “super-seniority” plan granting an additional 20 years of seniority to (1) strike replacements and (2) strikers who abandoned the strike and returned to work during the strike.
- The super-seniority credit applied for layoff and recall, placing employees who honored the strike at a lasting disadvantage in job retention and recall priority.
- The plan induced many strikers to return to work; after the strike ended, layoffs disproportionately affected employees who had remained on strike for its duration.
- The NLRB found the plan and related layoffs violated NLRA § 8(a)(1) and (3) as discriminatory interference with protected strike activity.
- The Third Circuit refused to enforce the Board’s order absent a showing of unlawful motive; the Supreme Court granted review to resolve a circuit conflict.

## Issues

1. Whether granting substantial super-seniority to strike replacements and returning strikers violates NLRA § 8(a)(1) and (3) when the discrimination turns on strike participation and there is no specific finding of antiunion intent.
2. Whether asserted operational “business necessity” justifies a super-seniority plan that predictably burdens employees for engaging in protected strike activity.

## Decision

- The Supreme Court reversed the Third Circuit and remanded with directions to enforce the NLRB’s order.
- The Court held the Board could find a violation of § 8(a)(1) and (3) without proof of specific unlawful motive because the super-seniority plan was inherently discriminatory in its operation and effects.
- The Court concluded the plan’s long-term and coercive impact on the right to strike outweighed the employer’s asserted operational justifications.
- The Court distinguished the rule permitting permanent replacement of economic strikers, holding that super-seniority went beyond lawful strike-continuation measures.

## Legal Principles

- Employer conduct that discriminates based on employees’ participation in protected concerted activity may violate NLRA § 8(a)(1) and (3) based on its objective tendency and foreseeable consequences, even without direct proof of antiunion animus.
- When a practice is “inherently destructive” of protected employee rights, the NLRB may treat it as unlawful unless the employer shows an overriding and legitimate justification.
- An employer’s interest in maintaining operations during an economic strike does not automatically justify measures that permanently penalize or deter strike participation.
- The lawful right to hire and retain permanent replacements during an economic strike does not include implementing additional, enduring preferences that restructure future employment rights to the detriment of strikers.

## Conclusion

The Court upheld the NLRB’s finding that Erie’s 20-year super-seniority plan unlawfully discriminated against employees who honored an economic strike, because the policy imposed a lasting penalty on protected strike activity and could be condemned without a specific finding of antiunion motive.


Labor Bd. v. Erie Resistor Corp., 373 U.S. 221 (1963)