1. Why do you think the employer refused to rehire the strikers after they gave an unconditional promise to return?

2. Do you think it is fair that employees striking because of an unfair labor practice are entitled to reinstatement? Explain.

3. Do you think the new owner of the business took this hard line in dealing with the union in order to try to initially establish its dominance over the union? Explain.

Issue: Whether an employer committed an unfair labor practice in refusing a striking union’s unconditional request for reinstatement and unilaterally giving a wage increase without consulting the union.

Facts: The parties failed to reach an agreement on a new contract, and on October 28, 1984, the Company unilaterally implemented the last offer it had made. On May 8, 1985, the employees went out on strike.

By letter dated April 29, 1987, the Union made an offer to return to work on behalf of the striking employees. The letter stated that the employees “unconditionally offer to return to work immediately.” In response, the Company sent a letter dated May 7, 1987, informing the Union that, “with regard to [the] unconditional offer to return to work,” the Company would not reinstate the striking employees. The Company contended that some of the employees had been lawfully terminated, and that the remainder were permanently replaced economic strikers who would be kept on a list for future vacancies.

On April 20, 1988, the Company offered reinstatement, without backpay, to 62 of the striking employees; 33 eventually returned to work.

Decision: The court agreed with the union that this was an unfair labor practice by the employer. A strike which is caused in whole or in part by an employer’s unfair labor practices is an unfair labor practice strike. Employees who go out on strike in response to an employer’s unfair labor practices may not be permanently replaced by other employees. Unfair labor practice strikers are entitled to immediate reinstatement by the employer upon their unconditional offer to return to work. Refusing to reinstate striking employees after their unconditional offer to return to work violates section 8(a)(3) and (1) of the Act.

The company granted employees a wage increase of 20 cents per hour; replaced the retirement plan with a 401(k) plan; and, changed the grievance procedure to by-pass the union and deal directly with the grievant. These actions all violate the employer’s duty to bargain with the employees’ exclusive bargaining agent in contravention of section 8(a)(5) and (1).