## Facts

- Land Air Delivery, Inc. operated an air-freight pickup and delivery business and employed both bargaining-unit drivers and individuals it treated as independent contractor drivers.
- Teamsters Local 41 was the certified exclusive bargaining representative for Land Air’s unit of drivers (and related employees).
- The company’s unit employees worked under the Teamsters’ National Master Freight Agreement (NMFA) during the relevant period.
- The extent to which Land Air could use independent contractors to perform work also performed by unit employees had been a major disputed subject in prior bargaining; the union rejected proposed subcontracting language and pressed for the NMFA’s restrictive limits on subcontracting unit work.
- Contract negotiations broke down and unit drivers went on an economic strike.
- During the strike, Land Air continued operations using a mix of its existing independent contractors, replacement employees, and other available personnel.
- About three months into the strike, Land Air took the further step of filling all driver positions by adding independent contractors, effectively transferring the bargaining-unit’s driving work to contractors on an ongoing basis.
- Land Air did not give the union notice of this decision or an opportunity to bargain over the permanent contracting out of unit work.
- After the strike ended, the striking employees made an unconditional offer to return to work.
- Land Air refused to reinstate the strikers, stating that there was no work available because the driving positions had been filled by independent contractors.
- The union filed unfair labor practice charges. An Administrative Law Judge found violations of NLRA §§ 8(a)(5) and 8(a)(1) (failure to bargain) and §§ 8(a)(3) and 8(a)(1) (discriminatory refusal to reinstate). The NLRB affirmed and ordered reinstatement and backpay. Land Air petitioned for review, and the NLRB sought enforcement.

## Issues

1. Whether Land Air violated NLRA §§ 8(a)(5) and 8(a)(1) by permanently contracting out bargaining-unit driving work to independent contractors during a strike without notifying and bargaining with the union.
2. Whether Land Air violated NLRA §§ 8(a)(3) and 8(a)(1) by refusing to reinstate economic strikers after an unconditional offer to return to work when the refusal was based on jobs being “filled” through unlawful permanent contracting out, and whether the NLRB’s reinstatement and backpay remedy was proper.

## Decision

- The D.C. Circuit denied Land Air’s petition for review and granted the NLRB’s application for enforcement.
- The court held that substantial evidence supported the Board’s finding that Land Air’s permanent contracting out of bargaining-unit work, implemented without notice and bargaining, violated §§ 8(a)(5) and 8(a)(1).
- The court also upheld the Board’s finding that Land Air’s refusal to reinstate the strikers after their unconditional offer to return violated §§ 8(a)(3) and 8(a)(1) because the company could not justify nonreinstatement by relying on the effects of its own unlawful subcontracting.
- The court enforced the Board’s remedial order, including reinstatement and backpay, as a means of restoring the situation that would have existed absent the unfair labor practices.

## Legal Principles

- An employer must bargain with the union over a decision to permanently contract out bargaining-unit work when that decision materially affects unit employees’ job opportunities and job security.
- A strike does not suspend the duty to bargain; continuing operations during a strike does not permit unilateral, permanent relocation of unit work outside the unit without bargaining.
- Economic strikers who make an unconditional offer to return are generally entitled to reinstatement unless their positions have been filled by lawful permanent replacements; an employer may not treat jobs as unavailable when the “unavailability” stems from its own unlawful unilateral transfer of unit work.
- On judicial review of an NLRB order, the court applies the substantial-evidence standard to the Board’s factual findings and gives deference to the Board’s remedial choices when they are reasonably designed to remedy the unfair labor practices.

## Conclusion

Land Air Delivery, Inc. v. NLRB held that Land Air committed unfair labor practices when, during an economic strike, it permanently contracted out bargaining-unit driving work to independent contractors without notifying and bargaining with the Teamsters, and then refused to reinstate strikers who unconditionally offered to return; the D.C. Circuit enforced the NLRB’s order requiring reinstatement and backpay.


Land Air Delivery, Inc. v. National Labor Relations Board, 862 F.2d 354 (1988)