## Facts

- A Texas cotton-processing employer maintained racially discriminatory practices affecting Black and Mexican-American employees in wages, job assignments, and related working conditions.
- A union was certified in December 1965 as the exclusive bargaining representative for the employer’s production and maintenance employees.
- The union and employer negotiated from late 1965 through June 1966 over economic terms and the employer’s discriminatory employment practices.
- The union alleged the employer refused to bargain in good faith on economic issues and on eliminating discriminatory terms and conditions of employment.
- The union called a strike on September 13, 1966 after unfair labor practice charges were filed.
- The employer refused to reinstate certain strikers, asserting the strike was not protected and/or positions had been permanently filled.
- The NLRB found violations of NLRA §§ 8(a)(1) and 8(a)(5) (refusal to bargain in good faith) and §§ 8(a)(1) and 8(a)(3) (discriminatory refusal to reinstate).
- The NLRB ordered the employer to cease and desist, bargain in good faith over economic issues and racial discrimination, and reinstate affected strikers with back pay.
- The union and employer petitioned for review, and the NLRB sought enforcement in a consolidated proceeding.

## Issues

1. Whether racially discriminatory wages, job assignments, and related conditions are mandatory subjects of bargaining under NLRA § 8(d), such that refusal to bargain over their elimination violates §§ 8(a)(5) and 8(a)(1).
2. Whether the strike was, in substantial part, an unfair labor practice strike, and what reinstatement and back-pay duties follow from that classification under §§ 8(a)(3) and 8(a)(1).
3. Whether the NLRB’s remedial order (bargaining over discrimination; reinstatement with back pay) was supported by substantial evidence and within the Board’s remedial authority.

## Decision

- The court held that racial discrimination embedded in wages, job assignments, and related working conditions is a mandatory subject of bargaining under § 8(d).
- The court upheld the Board’s finding that the employer refused to bargain in good faith over economic issues and the elimination of discriminatory employment conditions, violating §§ 8(a)(5) and 8(a)(1).
- The court sustained the Board’s determination that the strike was at least substantially motivated by the employer’s unfair labor practices, making it an unfair labor practice strike.
- The court upheld findings that the employer unlawfully refused to reinstate certain strikers, violating §§ 8(a)(3) and 8(a)(1).
- The court enforced the NLRB’s cease-and-desist, bargaining, reinstatement, and back-pay order and denied the petitions challenging the Board’s determinations.

## Legal Principles

- Discriminatory pay structures, job classifications, and assignment systems directly affect “wages, hours, and other terms and conditions of employment” and therefore fall within mandatory collective bargaining under NLRA § 8(d).
- An employer’s refusal to bargain in good faith over mandatory subjects, including the elimination of racially discriminatory conditions, violates NLRA §§ 8(a)(5) and 8(a)(1).
- A strike substantially caused by an employer’s unfair labor practices is an unfair labor practice strike; strikers are generally entitled to reinstatement upon an unconditional offer to return, and refusals to reinstate may violate §§ 8(a)(3) and 8(a)(1).
- On review, the Board’s findings on bargaining good faith and strike characterization are sustained if supported by substantial evidence on the record as a whole.
- The NLRB has broad remedial authority to order bargaining to address unlawful employment conditions and to award reinstatement and back pay to restore the status quo absent the unfair labor practices.

## Conclusion

The court enforced the NLRB’s order, holding that racial discrimination in core employment terms is a mandatory bargaining subject, that the employer’s refusal to bargain supported unfair labor practice findings, and that affected strikers were entitled to reinstatement with back pay.


United Packinghouse, Food & Allied Workers Int’l Union v. NLRB, 416 F.2d 1126 (D.C. Cir. 1969)